7  o  V  vo 


Workmen's  Compensation  Acts 
in  the  United  States 

The  Legal  Phase 


Vi 


Research  Report  Number  1 

April,   1917 

(Revised  August,  1919) 


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National  Industrial 
Conference  Board 


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WORKMEN'S   COMPENSATION  ACTS 


IN   THE    UNITED   STATES 


%* 


The  Legal  Phase 


Research  Report  Number  i 
April,   1917 

Revised   August,    1919 


m- 


Copyright   1919 


UN]  i  :  /IIA 

National  Industrial  Conference   Board 

15   Beacon   S t b  i  1 1   1 
Boston,  Mass. 

31899 


CONTENTS 

PAGE 

I     The    Adoption    and    Growth    of    the    Compensation 

Principle 1 

II     The  Form  and  Validity  of  State  Legislation   ...  6 

III  The  Persons  to  Whom  Compensation  Applies    ...  23 

IV  The  Notice  of  Injury      33 

V    The  Assurance  of  Systematic  Relief 35 

VI     Accident  and  Disease 38 

VII     "Misconduct"  by  Employer  and  Employee     ....  48 

VIII     The  Exclusiveness  of  Compensation      51 

IX    The  Administration  of  Compensation  Acts     ....  53 

X    Conclusions  and  Suggestions 56 

Appendix,  Table  A 59 

Table  B 60 


-H" 


UT-* 


Foreword 

A I AHE    accompanying   report   on    the    Legal    Phase   of 
Workmen's  Compensation  Acts  in  the  United  States 
^    is  a  revision  of  a  report  originally  issued  by  the  Board  in 
£    April,  1917. 

v  The  revision  consists  mainly  of  the  insertion  of  refer- 
ences to  new  legislation  enacted  or  new  decisions  rendered 
on  this  subject  during  the  intervening  period. 


i 


Workmen's  Compensation  Acts  in  the 
United  States 


THE   LEGAL   PHASE 


THE  ADOPTION  AND  GROWTH  OF  THE 
COMPENSATION  PRINCIPLE 

Systematic  compensation  for  work  injuries  is  now  a 
world  practice.  Since  the  adoption  of  the  first  compre- 
hensive national  scheme  by  Germany,  in  1884,  no  fewer 
than  fifty-three  countries  or  provinces,1  including  everj 
European  nation  save  Turkey,  have  followed  suit.  The 
legislation  varies  greatly  in  the  number  and  character  of 
occupations  included,  the  rate  of  payment  and  the  m<  >de  <  >l 
assuring  and  administering  it,  but  its  fundamental  prin- 
ciple is  universal.  The  basis  of  compensation  is  no  l< 
fault  actually  proved  or  imputed,  but  the  coincident  fact 
of  injury  while  at  work. 

In  our  own  country,  Maryland  in  1902  first  applied  the 
principle  in  a  lin  ay   to  en-tain  occupations.     The 

act  was  invalidated  by  a  court  of  first  instance,  but  no 
appeal  was  taken.  Montana  enacted  a  miners'  compensa- 
tion aet  in  March,  1909,  which  also  was  invalidated.  New 
York  in  L909  appointed  a  commission  whose  elaborate 
report  was  followed  by  the  invalidated  enactmenl  <>t 
L910.2  That  period  really  marks  the  beginning  oJ  syste- 
matic compensation  legislation;  and  now  one  federal  and 
over  forty  state  commissions  of  inquiry,  reinforced  by 
(Mended  private  investigations  at  home  and  abroad, 
have  examined  both   the  economic  and  legal   phases  oi 

1  See  Append       I  B  80. 

*Lab  ■  i         L910,  Chap.  674. 
/      v.  S.  Buff.  R.R.  Co  ,  201  V  ^  .,  271. 

I 


abject.  Forty-two  states,1  the  territories  of  Alaska, 
Hawaii,  and  Porto  Rico  have  enacted  compensation 
laws,  the  United  States  adopting  a  like  principle  for  the 
relief  of  its  civilian  employees  under  date  of  September 
7.  L916.  The  majority  of  our  industrial  workers  no 
longer  labor  under  the  common-law  principles  of  em- 
ployer's liability. 

Workmen's  compensation  laws  have  been  enacted  in 
every  state  in  the  union  except  Arkansas,  Florida,  Georgia, 
North  Carolina,  South  Carolina,  and  Mississippi.  During 
the  1919  legislative  sessions  Tennessee,  North  Dakota, 
Alabama,  and  Missouri,  enacted  compensation  laws,  and 
several  other  states  passed  amendatory  acts.  Bills  were 
introduced  but  not  acted  upon  in  Arkansas  and  North 
Carolina. 

The  form  of  our  legislation  has  been  strongly  influenced 
by  that  of  the  British  compensation  acts  of  1897  and  1906. 
The  substantial  features,  however,  reflect  a  persisting 
endeavor  to  naturalize  and  apply  the  economic  theories 
underlying  the  accident  relief  features  of  the  German 
system  of  social  insurance.  That  system  provides  a 
scheme  of  mutual  compulsory  insurance  jointly  adminis- 
tered by  its  contributors.  Here,  however,  compulsory  in- 
dustrial accident  funds  are  universally  administered  by 
public  officers  and  not  by  the  contributors. 

While  fundamentally  affected  by  foreign  examples,  our 
state  enactments  are  sharply  modified  by  local  traditions, 
phraseology,  and  various  political  and  social  influences, 
as  well  as  by  constitutional  limitations,  which,  in  adapting 
the  parent  pattern  to  its  environment,  have  produced 
many  dissimilarities  in  detail  and  phraseology  and  in  the 
consequent  judicial  and  administrative  construction.  The 
resultant  obligation  of  the  employer  to  assure  limited 
compensation  for  work  injuries,  and  the  reciprocal  duty 
and  right  of  the  employee  to  accept  it,  vary  greatly, 
therefore,  in  different  states.  There  is  not  only  a  decided 
lack  of  uniformity  in  statutory  language,  but  a  decided 
legislative  intent  to  produce  varying  degrees  of  liability, 
with  some  decided  differences  of  judicial  opinion  as  a 
consequence. 

'Ala.,  Ariz.,  Cal.,  Colo.,  Conn.,  Del.,  Idaho,  111.,  Ind.,  Iowa,  Kans.,  Ky.,  La. 
Me.,  Md.,  Mass.,  Mich.,  Minn.,  Mo.,  Mont.,  Neb.,  New,  N.  H.,  N.  J.,  New 
Mexico,  N.  Y.,  North  Dakota,  Ohio,  Okla,  Ore.,  Pa.,  R.  I.,  South  Dakota, 
Tenn.,  Texas,  Utah,  Va.,  Yt.,  Wash.,  W.  Va.,  Wis.,  Wyo.  A  similar  statute  for 
the  Philippine  Islands  is  excluded  from  consideration  on  account  of  its  very 
limited  application.     (See  Appendix,  Table  A,  page  59.) 


Purpose  of  Survey 

The  purpose  of  this  brief  survey  is  to  epitomize  the 
legal  status  of  the  employer  in  the  light  of  the  present 
operation,  and  administrative  and  judicial  interpretation 
of  compensation  legislation  in  its  more  important  aspects. 
The  inquiry,  while  not  exhaustive,  covers  most  of  the 
essentials  and  is  primarily  for  laymen. 

Two  difficulties  worthy  of  note  confront  the  investi- 
gator at  the  threshold  of  his  task.  One  is  the  fundamental 
difference  of  judicial  opinion  respecting  the  essential 
nature  of  compensation  legislation;  the  other  is  the  com- 
parative lack  of  systematic  information  respecting  the 
operation  of  the  legislation  of  the  various  states. 


Judicial  Theories  of  Compensation 

Judicial  decisions  relating  to  the  subject  are  numerous, 
uncompiled,  in  separate  form,  and  divided  by  two  con- 
tradictory conceptions  of  the  nature  of  the  legal  relation 
established  by  this  prevailing  substitute  for  employer's 
liability.  One  school  still  regards  the  new  system  as 
providing  a  novel  but  limited  remedy  in  tort.  That  is,  it 
assumes  that  the  injured  worker,  under  a  simplified  pro- 
cedure, is  to  be  indemnified  in  a  limited  amount  for  a  new 
form  of  misconduct  imputed  by  law  to  his  employer. 
Compensation  in  that  view  of  the  matter  is  intended, 
like  the  old  liability  statutes,  to  afford  redress  for  a 
private  wrong  and  is  therefore  a  new  regulation  of  private 
rights.  The  other  school  regards  workmen's  compensa- 
tion as  the  writing  by  the  State  of  a  limited  insurance 
policy,  against  work  injury,  into  the  labor  contract.  It 
vindicates  this  contractual  regulation  upon  the  generally 
nized  fact  that  under  the  conditions  of  modern  in- 
dustry, generally  speaking,  the  circumstances  oul  ol 
which  work  injuries  arise  are  only  to  a  limited  extern 
within  the  control  of  the  parties  and  have  therefore  Inn  a 
ted  relation  to  their  conduct.    The  risk  oi  injur)  is 

held    to   inhere   in    the    manner   in    which    the    work   o\    the 

world  is  now  done.     Occident  originate   ,  broadlj  speaking, 

in  the  environment  of  production  rather  than  in  the  COn- 
duct  of  the  involved.     Tim     r<    pon  ibilitj    for 

occupational    injur}    becomes     ocial    rather    than    indi- 
vidual.    Recognizing  this  fact,  compensation  acti    Bound 

3 


in  contract  and  not  in  tort.  They  arc  intended  to  meet  a 
public  necessity,  not  a  private  wrong.  Relief  is  afforded 
in  terms  of  wage  loss,  substituting  for  the  former  uncer- 
tain recovery  of  damages  commensurate  with  established 
wrong  the  assurance  of  substantial  protection  from  the 
economic  consequence  of  work  injury.  To  secure  this 
end  the  State  in  the  interest  of  the  public  and  the  worker 
thrusts  a  new  term  into  his  contract  of  service,  by  virtue 
of  which,  in  return  for  the  certainty  of  limited  relief,  he 
loses  former  equivocal  rights  of  action;  the  employer  in 
turn  is  divested  of  his  ancient  rights  of  defense  to  become 
a  limited  insurer  for  work  injuries  occurring  in  the  industry 
which  he  controls  and  operates. 

These  differing  judicial  conceptions  of  the  relations 
established  by  workmen's  compensation  as  a  substitute 
for  employer's  liability,  color  legislative  as  well  as  judicial 
opinion  and  affect  almost  every  phase  of  enactment, 
amendment,  construction,  and  administration. 

The  decisions  of  the  various  boards,  commissions,  or 
temporary  arbitrators,  who  administer  the  provisions  of 
most  of  the  existing  acts,  are  incompletely  reported 
or  are  unpublished.  But  the  operation  of  these  bodies  is 
of  the  most  practical  importance  in  contracting  or  ex- 
panding the  application  of  a  statute,  increasing  or  de- 
creasing the  cost  of  its  administration,  the  expense  to  the 
litigants  and  the  efficiency  of  relief.  The  reports  of  their 
operation  are,  generally  speaking,  so  often  lacking  in 
adequate  data  as  to  defy  legal  analysis  of  their  decisions, 
or  deny  definite  comparisons  between  statutes  or  accurate 
economic  appraisals  of  the  old  system  and  the  new. 

Commission  Reports 

Many  of  these  administrative  commissions  present 
interesting  and  instructive  reports,  but  the  lack  of  uniform 
or  scientific  compilation  of  information  makes  difficult  any 
practical  comparison  of  their  experience,  while  continuous 
amendment  and  frequent  changes  of  administration  and 
method  often  make  it  equally  difficult  to  compare  the 
older  reports  of  the  same  state  with  the  new.  A  reason- 
able uniformity  in  regulation,  administration,  and  con- 
struction of  our  various  acts,  an  obvious  desideratum,  can 
never  be  approximated  or  even  intelligently  recommended 
until  the  various  states  have  adopted  rational  scientific 


standards  for  compiling,  systematizing,  analyzing,  and 
comparing  their  individual  operation.  This  organization 
of  information  is  indispensable  for  the  intelligent  applica- 
tion of  experience  to  progress.  Without  it  we  can  never 
hope  to  appraise  practically  the  comparative  value  of 
these  many  vital  experiments  in  legislation. 

Lack  of  Accident  Data 

Despite  years  of  assertion  and  debate  respecting  the 
number,  extent,  and  duration  of  work  accidents,  we  still 
lack  approximately  reliable  figures.  Nor  are  we  informed 
as  to  the  relation  of  the  whole  number  of  work  injuries 
to  the  total  of  general  accidents.  The  differences  of 
opinion  resulting  from  estimates  predicated  upon  our  in- 
complete data  are  well  illustrated  by  a  comparison  of  the 
calculations  of  two  well-known  students  of  these  subjects 
presented  in  bulletins  of  the  United  States  Bureau  of  Labor 
Statistics.  One  estimated  from  insurance  data  that  some 
25,000  fatal  industrial  accidents  and  700,000  non-fatal 
injuries  disabling  for  more  than  four  weeks  occurred 
annually  in  the  United  States;1  the  other,  predicating  his 
conclusions  upon  the  report  of  the  Massachusetts  Indus- 
trial Accident  Board  for  1913-14,  estimates  the  annual 
occurrence  of  3,255,800  non-fatal  industrial  accidents 
disabling  for  one  day  or  more  and  5,690,000  reportable 
accidents.2 

Either  of  these  divergent  opinions  suggests  the  present 
and  future  field  for  the  application  of  the  compensation 
principle,  the  number  and  variety  of  claims  to  be  examined 
and  the  relief  to  be  provided.  It  must  impress  every 
thoughtful  man  with  the  increasing  necessity  for  uni- 
formity and  certainty  of  obligation  and  right,  if  speedy 
and  adequate  relief  is  to  be  assured  to  the  injured  worker 
and  a  definite  and  insurable  obligation  ascertained  for 
the  employer. 


1  r.  S.  Bureau  of  Labor  Si   :         ,  Bulletin  No.  1">7,  page  6.    Estimate  of 
Dr.  Frederick  L.  Hoffman. 

2  Address  I  ' 

I).  C,  December,  1916.     U.S.  Bureau*. I  Labor  Statistics,  Bulletin  No.  212, 
page  360. 

5 


II 

THE  FORM  AND  VALIDITY  OF  STATE 
LEGISLATION 

Elective  and  Compulsory  Acts 

The  adoption  of  the  compensation  method,  within  the 
employments  included,  is  without  alternative  for  the 
employer  in  eleven  states  and  Hawaii.1  In  thirty  states, 
Alaska,  and  Porto  Rico  he  may  either  accept  it  or  suffer 
the  abrogation  of  some  or  all  of  his  common-law  de- 
fenses in  any  action  for  negligence.2  New  Jersey  and 
Pennsylvania  abrogate  all  such  defenses  whether  com- 
pensation be  accepted  or  rejected.  In  the  states  where 
the  employer  may  elect,  the  employee  may,  as  a  rule, 
likewise  exercise  an  independent  option.  In  Texas  he  is 
bound  by  his  employer's  choice.  In  Arizona  compensa- 
tion is  compulsory  for  the.  employer,  but  the  employee 
after  injury  may  either  accept  compensation  or  pursue 
his  common-law  remedy.3  But  the  Arizona  legislature 
cannot  confer  such  right  of  election  after  the  employee's 
death  upon  his  personal  representative  for  the  benefit  of 
dependents.4  In  Xew  York  only  the  employer  may 
elect.5  Public  employees  are  wholly  or  partially  covered 
in  twenty-seven  states.  In  twenty-three  of  these  inclusion 
is  compulsory;  in  some  only  manual  laborers  are  included; 
in  others  those  in  the  service  of  the  municipalities  are 
excluded. 

Ohio  Act  Sustained 

The  original  compensation  act  of  Ohio  was  elective  in 
form,  but  since  the  adoption  of  a  constitutional  amend- 
ment in  1912  authorizing  the  creation  of  a  state  insurance 
fund,  requiring  its  administration  by  the  State  and  com- 
pulsory contribution  thereto  by  employers,  the  provisions 

1  Ariz.,  Cal.,  Idaho,  111.,  Md.,  N.  Y.,  Ohio,  Okla.,  Utah,  Wash.,  Wyo. 

2  Colo.,  Conn.,  Del.,  Ind.,  la.,  Kan.,  Ky.,  La.,  Me.,  Mass.,  Mich.,  Minn., 
Mo,  Mont,  Neb,  Nev..  X.  H,  N.  J,  N.  M,  N.  Dak,  Ore,  Pa,  R.I,  S.  Dak, 
Tex,  Tenn,  Va,  Vt,  W.  Va,  Wis. 

3  Cons.  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz,  382. 

4  Behringer  v.  Inspiration  Cons.  Copper  Co.,  17  Ariz,  232. 

5  Herkey  v.  Agar  Mfg.  Co.,  153  N.  Y.  Supp,  369. 

6 


of  the  act  have  been  made  compulsory  upon  all  em- 
ployers of  five  or  more  workmen,  but  optional  as  to  em- 
ployers of  less  than  this  number.1  This  classification  has 
been  sustained  on  appeal  to  the  Supreme  Court  of  the 
United  States.2  In  California  compensation  is  compul- 
sory for  industrial  employees,  but  elective  as  to  domestic 
service  and  farm  labor.3 

Presumptions  of  Election 
In  nineteen  states,1  Alaska,  and  Porto  Rico  election  of 
the  compensation  system  by  the  employer  and  employee  is 
presumed  unless  either  definitely  rejects  it.  In  Illinois, 
Kentucky,  Maine,  Michigan,  Montana,  New  Hampshire, 
Nevada,  and  Rhode  Island  the  employer  must  formally 
elect  by  notice  to  a  state  authority,  while  acceptance  by 
the  employee  is  presumed  unless  there  is  notice  to  the  con- 
trary. In  Massachusetts  the  employer  makes  election 
simply  by  insuring  in  one  of  the  approved  private  insurance 
companies.  Similarly,  in  West  Virginia  and  Texas  em- 
ployers make  election  either  by  subscribing  to  the  state 
insurance  fund  or  by  insuring  with  a  private  underwriter. 

Early  Decisions  on  Constitutionality 
The  constitutional  aspects  of  compensation  legislation 
have  been  a  continuous  subject  of  discussion.  The  in- 
validation of  the  first  New  York  act  by  its  highest  court 
naturally  excited  sharp  criticism.5  In  accordance  with 
the  suggestion  of  that  decision,  however,  a  constitutional 
amendment  enlarging  the  power  of  the  legislature  and 
enabling  it  to  deal  with  the  subject  was  adopted  and  the 
subsequent  enactment  thereunder  has  been  sustained  by 
both  the  highest  court  of  that  state  and  of  the  United 
States.6  Other  acts  were  invalidated  in  whole  or  in 
part  by  the  Supreme  Courts  of  Montana7  and  Kentucky,8 

1  Ohio  Con  itil  ution,  S<  i  ,  35,  Vrti<  le  2. 

103  Ohio  I .  ■■■  .  p:  -■■•  72. 

State  v.  Industrial  Commission,  92  0.  St.  Repi ,  134 
*  Jeffrey  Mfg.  Co.  ^.  Blagg,  235  U.  S.,  571. 
3  Stat.  Cal.,  1913,  page  279  (Boynton 

Western  Indemnity  C        r       \try,  170  Cal.,  886. 
1  Colo.,  Conn..  Del.,  (nd.,  Iowa,  Kan.,  La.,  Minn.  Mo.,  Neb.,  V  f.,  N  Mex., 

Pa.,  S.  Di        i  Va.,  Vt.,  \\ 

*Ives  v.  S.  Huff.  R.R.  Co.,  201  N.Y.,  271. 

I    n  titution  of  New  York,  ^rtii  le  I .  Se<    19,  adopted  Novembei  I,  L913. 

Jensen  v.  So.  Pae.  Co.,  215  N.  Y.,  51  I 

,  .  Central  A'.  A'.  Co.  v.  White,  37  Sup.  Ct.  Rep.,  247. 

1  Cunningham  v.  A'.  //  ,  In  pro     »    •  I  Co  .   II  Mont.,  180. 

8  Ky.  State  Journal  Co.  v.  rVdrkmen'i  Compensation  Board,  161  K  \  .    ' 

7 


but  corrective  legislation  has  in  each  instance  since 
passed  the  judicial  scrutiny1  and  almost  every  objection 
presentable  has  been  met  by  the  state  courts. 

Until  1917  compensation  statutes  had  had  but  limited 
review  by  the  Supreme  Court  of  the  United  States.  In 
two  instances  the  acts  of  Ohio'2  and  Washington3  had  been 
sustained;  the  former  against  the  charge  of  arbitrary 
classification  because  it  excluded  from  its  terms  all  em- 
ployers of  less  than  five  persons,  the  latter  with  respect 
to  the  exclusiveness  of  the  compensation  remedy.  The 
Court  has  now  had  occasion  to  pass  upon  both  elective 
and  compulsory  acts  and  test  their  fundamental  principles. 
Seven  cases  were  presented  during  1916  on  appeal  from 
Washington,  Iowa,  New  York,  and  New  Jersey.  Owing 
to  deaths  in  the  Court  these  cases  were  set  for  reargument, 
together  with  four  other  appeals  from  the  same  states 
and  one  from  Ohio,  all  of  which  were  heard  in  January, 
1917.  On  March  6,  1917,  the  Court  rendered  opinions 
sustaining  the  New  York,  Iowa,  and  Washington  acts; 
the  two  former  by  unanimous  opinions,  the  latter  by  a 
divided  Court. 

Compensation  in  Supreme  Court  of  the 
United  States 

These  most  important  decisions  were  rendered  in  the 
cases  of: 

1.  The  New  York  Central  R.R.  Co.  v.  White. 4 

2.  Mountain  Timber  Company  v.  The  State  of  Wash- 
ington.5 

3.  Hawkins  v.  Bleakly,  Auditor  of  the  State  of  Iowa, 
etc.6 

THE  NEW  YORK  CASE 
Statement  of  Case 

This  was  a  writ  of  error  from  the  Court  of  Appeals  sus- 
taining an  award  of  the  Workmen's  Compensation  Com- 

1  Lewis  and  Clark  County  v.  Industrial  Accident  Commission  (Mont.),  155  Pac, 
268. 

Greene  v.  Caldwell,  170  Ky.,  571. 

2  Jeffrey  Mfg.  Co.,  v.  Blagg,  235  U.  S.,  571. 

3  Northern  Pac.  R.R.  Co.  v.  Meese,  239  U.  S.,  614. 
*  37  Sup.  Ct.  Rep.,  247. 

6  37  Sup.  Ct.  Rep.,  260. 
6  37  Sup.  Ct.  Rep.,  255. 

8 


mission  of  the  State  of  New  York  to  Sarah  White  for  the 
death  of  her  husband  from  an  injury  arising  during  the 
course  of  his  employment  with  the  New  York  Central 
Railroad  Company.  It  was  contended  that  the  award 
of  compensation  was  wrongfully  made,  since  the  liability 
of  the  railroad  company  was  determined  exclusively  by 
the  Federal  Employers'  Liability  Act  of  1908,  the  decedent 
having  been  employed  in  interstate  commerce  at  the  time 
of  his  injury;  and  that  the  award  deprived  the  carrier  of 
property  without  "due  process  of  law"  and  denied  the 
"equal  protection  of  the  law"  guaranteed  by  the  Four- 
teenth Amendment. 

The  first  point  was  held  to  be  without  merit,  since  the 
decedent,  at  the  time  of  injury,  was  a  watchman  guarding 
construction  materials  of  the  carrier,  and  not  engaged  in 
work  of  interstate  transportation,  or  what  could  be 
deemed  a  part  of  it. 

Objections  to  the  New  York  Act 
The  Court  then  examined  the  substantial  objections. 

First.  That  the  Compensation  Act  subjected  the  car- 
rier to  liability,  without  neglect  or  default  on  his  part  or 
that  of  his  agent,  the  injury  being  solely  attributable-  to 
the  fault  of  the  employee. 

Second.  That  the  limited  compensation  prescribed 
interfered  with  the  employee's  right  to  a  recovery  com- 
mensurate with  the  damage  sustained  by  the  employer's 
fault. 

Third.  That  both  employer  and  employee  wen-  pre- 
vented from  exercising  their  liberty  to  acquire  properly 
by  making  such  contract  as  they  chose  respecting  the 
terms  of  employment. 

Meeting  these  points,  the  Court  held: 

The  Court's  Answer 

first.  That  under  its  police  power  the  State  possessed 
complete  authority  to  abolish  or  change  existing  rules  <>t 
employer's  liability  and  might  modify  the  nature  and  extern 
of  his  duty  ami  the  tesl  of  negligence;  thai  the  scheme  "I 
compensation  pre  ented  wa  i,  as  a  whole,  the  sub  titution 
of  a   better  method  of  meeting   inevitable   work   injury. 

9 


The  power  exercised  was  neither  unreasonable  nor  arbi- 
trary, and  the  police  authority  existed 

"to  impose  upon  the  employer  the  absolute  duty  of  making 
a  moderate  and  definite  compensation  in  money  to  every 
disabled  employee,  or  in  case  of  his  death  to  those  who  are 
entitled  to  look  to  him  for  support,  in  lieu  of  the  common-law 
liability  confined  to  cases  of  negligence."1 

Second.  It  answers  the  objection  to  the  act  from  the 
employee's  standpoint  by  declaring: 

"  Nor  can  it  be  deemed  arbitrary  and  unreasonable,  from  the 
standpoint  of  the  employee's  interest,  to  supplant  a  system 
under  which  he  assumed  the  entire  risk  of  injury  in  ordinary 
cases,  and  in  others  had  a  right  to  recover  an  amount  more  or 
less  speculative  upon  proving  facts  of  negligence  that  often 
were  difficult  to  prove,  and  substitute  a  system  under  which  in 
all  ordinary  cases  of  accidental  injury  he  is  sure  of  a  definite 
and  easily  ascertained  compensation,  not  being  obliged  to 
assume  the  entire  loss  in  any  case  but  in  all  cases  assuming 
any  loss  beyond  the  prescribed  scale."2 

Third.  Meeting  the  objection  that  the  statute  strikes 
at  the  constitutional  freedom  of  contract,  the  Court  de- 
clares that,  without  qualifying  or  weakening  its  preceding 
declarations  respecting  the  primary  importance  of  rights 
of  personal  liberty  and  of  private  property,  it  recognizes 
in  this  statute  a  reasonable  restraint  laid  on  the  exercise 
of  these  rights,  since 

"The  subject-matter  in  respect  of  which  freedom  of  contract 
is  restricted  is  the  matter  of  compensation  for  human  life  or 
limb  lost  or  disability  incurred  in  the  course  of  hazardous 
employment,  and  the  public  has  a  direct  interest  in  this  as 
affecting  the  common  welfare."3 

The  Court,  answering  the  criticism  that  the  act  imposes 
no  rule  of  conduct  upon  the  employer  with  respect  to  the 
conditions  of  labor  in  the  various  industries,  states  that 
measures  of  prevention  are  not  of  sole  interest  to  the 
public,  since  these  may  be  accomplished  by  other  statutes, 
while  in  the  present  instance  the  legislature  is  primarily 
concerned  in  averting  the  economic  consequence  flowing 

1 37  Sup.  Ct.  Rep.,  253. 

2  37  Sup.  Ct.  Rep.,  253. 

3  37  Sup.  Ct.  Rep.,  254. 

10 


from  the  loss  of  the  support  or  earning  power  of  the  in- 
dividual, and  thus  preventing  pauperism,  vice,  and  crime. 

The  Court  sustains  both  the  scheme  of  compensation 
presented  as  a  whole  and  the  method  of  securing  its  pay- 
ment by  requiring  the  employer  either  to  give  reasonable 
security  for  or  to  furnish  satisfactory  proof  of  his  financial 
ability  to  meet  his  statutory  obligation. 

In  conclusion,  the  Court  sounds  a  significant  warning  by 
observing  that  it  is  not  to  be  understood  as  holding  that 
"any  scale  of  compensation,  however  insignificant  on  the 
one  hand  or  onerous  on  the  other,  would  be  supportable." 


THE  WASHINGTON  CASE 

Statement  of  Case 

The  foundation  of  this  appeal  was  an  action  brought  by 
the  State  to  recover  certain  premiums  based  upon  a  per- 
centage of  the  estimated  payroll  of  a  logging  company, 
which  sum  was  to  be  paid  into  the  state  accident  fund,  to 
which  employers  in  certain  classified  hazardous  occupa- 
tions were  under  compulsion  to  contribute,  in  accordance 
with  their  classified  risk.  The  Supreme  Court  of  Wash- 
ington gave  a  judgment  in  favor  of  the  State  (75  Wash- 
ington, 581). 

Mr.  Justice  Pitney  delivered  the  majority  opinion,  sus- 
taining the  decision  of  the  State  Court  and  the  validity  of 
the  compensation  act;  the  Chief  Justice  and  Justices 
McKenna,  Van  Deventer,  and  McReynolds  dissented 
without  expressing  their  reasons. 

Distinction  between   New  York  and   Washington 

Cases 

Mr.  Justice  Pitney,  after  briefly  summarizing  the 
Washington  statute  and  disposing  "I  preliminary  objec- 
tions, points  out  thai  the  chief  distinction  between  this 
case  and  that  involving  the  New  York  Compen  ation 
Act  lies  in  the  enforced  contribution  to  the  state  fund, 
which  is  the  essential  characteristic  of  the  Washington  Vet. 
This  compulsory  requirement,  il  had  been  urged,  violated 
the  "due  process  of  law"  and  "equal  protection"  clau  ies 
of  the  Fourteenth  Amendment,  since  il  compelled  the 
employer  to  contribute  to  the  state  accideni  fund  whether 

11 


his  own  employees  were  injured  or  not,  so  that  even  though 
they  were  immune  from  injury  or  death,  he  was  still 
required  to  make  periodical  contributions  for  the  com- 
pensation of  the  disabled  employees  of  his  more  negligent 
competitors. 

Constitutional  Test  of  Washington  Act 

The  Supreme  Court  of  Washington  declared  the  act  to 
legitimately  possess  the  character  of  "a  license  tax  upon 
the  occupation,  partaking  of  the  dual  nature  of  a  tax  for 
revenue  and  a  tax  for  purpose  of  regulation."  The 
crucial  inquiry,  declared  Mr.  Justice  Pitney,  whether  the 
act  be  regarded  as  a  regulation  or  a  combination  of  regu- 
lation and  taxation,  depends,  in  turn,  upon  whether  or 
not  the  Washington  statute,  under  the  Fourteenth  Amend- 
ment, is  a  fair  and  reasonable  exercise  of  governmental 
power,  or  so  extravagant  and  arbitrary  as  to  constitute 
an  abuse  of  it.  To  apply  this  test  to  the  statute  before 
it,  the  Court  asks  and  answers  three  questions: 

1.  Whether  the  chief  object  which  the  Washington 
statute  undertakes  to  accomplish  is  of  general  and  public 
rather  than  private  and  particular  interest,  so  as  to  justify 
the  restrictions  upon  personal  liberty  and  the  right  of 
acquiring  property  resulting  from  its  operation. 

2.  Whether  the  tax  burden  imposed  upon  the  em- 
ployer is  reasonable  in  amount  or  of  such  a  nature  as  to  be 
manifestly  oppressive. 

3.  Whether  there  is  a  fair  distribution  of  the  burden 
giying  due  consideration  to  the  causes  which  make  the 
legislation  necessary. 

Answering  these  questions  in  an  elaborate  discussion, 
the  Court  holds: 

Establishment  of  a  Compensation  System  a 
Public  Concern 

1.  "The  matter  of  compensation  for  accidental  injuries 
with  resulting  loss  of  life  or  earning  capacity  of  men  employed 
in  hazardous  occupations  is  of  sufficient  public  moment  to 
justify  making  the  entire  matter  of  compensation  a  public 
concern,  to  be  administered  through  state  agencies."1 

1  37  Sup.  Ct.  Rep.,  265. 

12 


Burden  not  Excessive 

2.  It  is  declared  that  inasmuch  as  the  compensation 
allowed  is  not  objected  to  as  unduly  large,  the  burden 
resting  upon  industry  cannot  be  regarded  as  excessive 
"if  the  State  is  at  liberty  to  impose  the  entire  burden  upon 
the  industry."  If,  declares  the  opinion,  injuries  in  such 
employments  as  that  covered  by  the  Washington  Act 
have  become  frequent  and  inevitable,  and  if,  as  in  the 
New  York  case, 

"the  State  is  at  liberty,  notwithstanding  the  Fourteenth 
Amendment,  to  disregard  questions  of  fault  in  arranging  a 
system  of  compensation  for  such  injuries,  we  are  unable  to  dis- 
cern any  ground  in  natural  justice  or  fundamental  right  that 
prevents  the  State  from  imposing  the  entire  burden  upon  the 
industries  that  occasion  the  losses.  The  act  in  effect  puts  these 
hazardous  occupations  in  the  category  of  dangerous  agencies, 
and  requires  that  the  losses  shall  be  reckoned  as  a  part  of  the 
cost  of  the  industry,  just  like  the  pay-roll,  the  repair  account, 
or  any  other  item  of  cost." 

3.  It  is  held  that  the  plan  of  assessment  insurance 
applying  experience  to  the  fixing  of  premiums  for  relative 
hazard  is  as  just  a  means  of  distributing  the  burden  of  loss 
as  has  been  suggested.     On  this  point  the  Court  held: 

"The  plan  of  assessment  insurance  is  closely  followed,  and 
none  more  just  has  been  suggested  as  a  means  of  distributing 
the  risk  and  burden  of  losses  that  inevitably  must  occur,  in 
spite  of  any  care  that  may  be  taken  to  prevent  them." ' 


Answer  to  Discriminations 

Answering  the  criticism  that  more  carefully  managed 
plants  are  required  to  meet  losses  arising  from  the  neglj- 
gence  of  less  careful  competitors,  it  is  pointed  out  thai  it 
is  impossible  to  foresee  when  or  in  what  planl  or  industry 
injury  may  occur.  And  thai  as  the  power  exists  in  the 
State  to  provide  for  the  relief  of  Buch  disabilities  or  de- 
pendency as  may  ensue,  it  is  reasonable  to  impose  the 
burden  of  such  relief  upon  the  industry  through  a  ;.  tem 
of  occupational  taxes  limited  to  the  actual  loss<  i  occurring, 
instead  of  impo  ing  luch  obligation  upon  the  particular 
employer  in  whose  planl  a<  i  idente  ma}  o  i  ur. 

1  37  Sup.  Ct.  B 

13 


Examples  of  Similar  Taxes 

In  conclusion,  the  Court  calls  attention  to  the  fact  that 
special  excise  taxes  for  regulation  and  revenue  propor- 
tioned to  the  special  injur}'  attributable  to  particular 
activities  are  not  new.  It  cites  several  instances  of  such 
legislation,  among  these  perhaps  the  most  illustrative  is 
that  of  the  tax  imposed  by  many  states  upon  dog  owners, 
to  remunerate  the  owners  of  sheep  killed  by  dogs,  the  tax 
being  imposed  without  regard  to  whether  or  not  all  the 
dogs  taxed  actually  kill  sheep.1 

THE  IOWA  CASE 

Statement  of  Case 

This  was  an  appeal  from  the  United  States  District 
Court  for  the  Southern  District  of  Iowa,  which  dismissed 
an  application  for  an  injunction  to  restrain  the  enforce- 
ment of  the  Iowa  Compensation  Act  (220  Fed.  378).  It 
appears  that  since  the  appeal  was  taken  the  Supreme 
Court  of  Iowa  had  construed  and  sustained  this  act.2 
The  Supreme  Court  of  the  United  States  consequently 
accepted  that  construction  of  the  language  of  the  act  in 
determining  the  constitutional  objections  to  it. 

Iowa  Act  Elective 

The  Iowa  Act,  unlike  that  of  Washington  or  New  York, 
previously  considered,  is  elective  in  form,  possessing  the 
general  features  common  to  similar  statutes  sustained  by 
the  various  State  Supreme  Courts.  To  the  main  purpose 
of  the  act,  the  establishment  of  a  compensation  system,  no 
constitutional  objection  was  made,  the  criticism  being 
confined  to  particular  provisions  of  the  law. 

Acceptance  under  Duress 

1.  To  the  contention  that  the  employer  was  subjected  to 
undue  duress  by  the  threatened  abolition  of  his  common- 
law  defenses  in  order  to  persuade  him  to  accept  the  act, 
it  was  answered  that  the  contention  had  been  disposed  of 
by  the  New  York,  Washington,  and  other  decisions  holding 
that  the  employer  had  no  vested  right  in  such  defenses, 
which  were  subject  to  modification  and  abrogation  by  the 
State. 

1  Morey  v.  Brown,  42  N.  H..  373. 

Tenney  v.  Lenz,  16  Wis.,  589. 
*  Hunter  v.  Colfax  Cons.  Coal  Co.  (Iowa),  154  N.  W.,  1037;    157  N.  W.,  145. 

14 


Changing  Burden  of  Proof 

2.  It  was  objected  that  the  employer  was  denied  due 
process  of  law  if  he  rejected  the  compensation  system, 
because  the  burden  of  proof  was  then  placed  upon  him 
to  show  that  an  injury  was  not  the  direct  result  of  his 
negligence.  It  was  held  that  rules  fixing  the  burden  of 
proof  were  subject  to  modification  by  the  legislature,  pro- 
vided such  changes  were  not  unreasonable  or  conclusive  of 
the  rights  of  the  party.1 

Presumptions  of  Undue  Influence 

3.  Objection  was  made  to  the  provision  requiring  an 
employee  rejecting  the  act  to  state  in  an  affidavit  who,  if 
any  one,  requested  or  suggested  that  he  do  so;  and  if  it 
were  found  to  be  the  employer  or  his  agent,  there  should 
be  a  conclusive  presumption  that  the  employee  had  been 
unduly  influenced  and  his  rejection  of  the  act  was  void. 
This,  however,  was  held  to  be  a  reasonable  protective 
regulation  in  aid  of  the  general  purpose  of  the  act. 


Administration  by  Commission 

4.  It  was  objected  that  the  administrative  machinery 
provided  denied  "due  process  of  law"  to  the  employer. 
But  the  mode  of  administration,  as  interpreted  by  the 
Supreme  Court  of  Iowa,2  was  sustained  as  securing  to  the 
party  at  interest  a  final  judicial  review  upon  all  funda- 
mental and  jurisdictional  questions. 


Denial  of  Trial  by  Jury 

5.  An  elaborate  argument,  to  the  effeel  thai  trial  by  jury 
was  peculiarly  guaranteed  to  the  people  of  Iowa  by  in- 
corporating into  the  acl  <>i  C  the  territory 
a  certain  o\  the  Ordinance  of  L 787,  was  dis- 
posed of  by  the  conclusion  thai  all  antecedenl  legislation 
was  si  by  the  adoption  of  the  Stair  Constitu- 
tion. Tin-  legislature  of  the  State  of  towa  was  therefore 
possessed  of  the  same  righl  a  i  any  other  state  t<>  limit  tin- 
exercise  of  this  righi  or  provide  for  it  a  wan  er,  ai  \\  as  di  me 
by  the  pending  act. 

1  Mobile,  etc.,  v.  TurnipserJ,  219  V- 

2  Hunter  v.  Colfax  Com.  C  I,   i:.l  \    \\\.  1064. 

15 


Arbitrary    Discrimination   in  Abolishing   Defenses 

(>.  It  was  objected  that  the  act  denied  the  employer  the 
"equal  protection  of  the  law"  because  one  section  provided 
that  where  both  employer  and  employee  rejected  the  act 
the  liability  of  the  employer  should  be  the  same  as  though 
the  employee  had  not  rejected  it.  It  was  pointed  out  that 
the  State  possessed  the  absolute  right  to  abolish  or  modify 
existing  defenses  and  that  there  was  no  arbitrary  dis- 
crimination, since  the  act  further  provided  that  if  the  em- 
ployee rejected  it  the  employer  accepting  it  possessed 
against  him  all  the  usual  common-law  defenses. 

These  cases  possess  unusual  interest,  because  in  the 
course  of  them  the  Supreme  Court  of  the  United  States, 
for  the  first  time,  had  opportunity  to  examine  both  elective 
and  compulsory  compensation  legislation  and  especially 
to  pass  upon  the  power  of  the  State  to  compel  contribu- 
tion to  a  state  accident  fund,  and  thus  place  the  seal  of  its 
approval  upon  the  most  prevalent  forms  of  compensation 
legislation. 

Constitutional  Objections  Answered  by  State 
Courts 

Previous  to  these  decisions  by  the  Supreme  Court  of  the 
United  States  a  great  number  of  supreme  judicial  tribunals 
had  sustained  the  statutes  of  their  respective  states 
against  the  objection  that  they  denied  to  employer  or 
employee  due  process  of  law1  or  the  equal  protection  of  the 
law,2  made  arbitrary  or  invidiously  discriminating  classi- 
fications,3 unduly  impaired  the  right  of  free  contract4  or 

1  State  v.  Creamer,  85  Ohio  State,  349. 

State  ex  rel  Davis-Smith  Co.  v.  Clausen,  65  Wash.,  156. 

Sayles  v.  Foley  (R.  I.),  96  Atlantic,  340. 

Hunter  v.  Colfax  Cons.  Coal  Co.,  154  N.  W.,  1037. 

Sexton  v.  Newark  Dist.  Telegraph  Co.,  84  N.  J.  Law,  85. 

Anderson  v.  Carnegie  Steel  Co.  (Pa.),  96  Atlantic,  215. 
2 The  above  cases,  and: 

State  v.  Mountain  Timber  Co.,  75  Wash.,  581. 

37  Sup.  Ct.  Rep.,  260. 

Wood  v.  City  of  Detroit,  155  N.  W.,  592. 

Wheeler  v.  Contocook  Mills  Corp.,  77  N.  H.,  551. 

Shade  v.  Ash  Grove  Lime  \i  Portland  Cement  Co.,  93  Kan.,  257. 

Porter  v.  Hopkins  (Ohio),  109  N.  E.,  629. 
3  Jeffrey  Mfg.  Co.  v.  Blagg,  90  Ohio,  376.    Conclusively  affirmed,  235  U.  S.,  571. 

State  v.  Griffin,  69  N.  H.,  1. 

In  re  Keaney  (Mass.),  104  N.  E.,  438. 
*  Mackin  v.  Detroit-Timken  Axle  Co.,  187  Mich.,  8. 

Sexton  v.  Newark  Dist.  Telegraph  Co.,  84  N.  J.  Law,  85. 

State  v.  Clausen,  65  Wash.,  156. 

Sayles  v.  Foley  (R.  I.),  96  Atlantic,  340. 

Anderson  v.  Carnegie  Steel  Co.  (Pa.),  96  Atlantic,  215. 

16 


the  obligation  of  existing  contracts,1  abridged  constitu- 
tional privileges  and  immunities,2  denied  the  right  to 
trial  by  jury,3  destroyed  vested  rights  by  the  abolition  of 
remedial  statutes  and  common-law  remedies  for  defense,4 
abolished  the  right  to  judicial  settlement  of  private  contro- 
versies,5 improperly  delegated  legislative  or  judicial  power,6 
abolished  the  guarantee  to  every  state  of  a  republican  form 
of  government,7  or  established  arbitrary  class  legislation.8 
Assailed  in  the  field  of  the  taxing  power  this  legislation  has 
been  upheld  against  the  fundamental  objection  that  it 
appropriated  public  money  for  a  private  purpose9  or  laid 
upon  private  property  taxation  that  was  neither  uniform 
nor  equal.10 

1  State  v.  Creamer,  85  Ohio  State,  349. 

State  ex  rel  Nelson-Spelliscy  Co.  v.  Dist.  Court  of  Meeker  Countv,  128  Minn., 
221. 
"    Troth  v.  Millville  Bottle  Works,  86  N.  J.  Law,  558. 

2  Greene  v.  Caldwell,  170  Ky.,  571. 

Hunter  v.  Colfax  Cons.  Coal  Co.,  154  X.  \\ '..  1037;    157  X.  \Y.,  1  15. 
State  ex  rel  Davis-Smith  Co.  v.  Clausen,  65  Wash.,  156. 
3Deibeikis  v.  Link  Belt  Co.  (111.),  104  X.  E..  211. 
Sayles  v.  Folev  (R.  1    .  96   Atlantic,  340. 
Middleton  v.  Texas  Power  rd  Light  Co.  (Tex.),  185  S.  W.,  556. 
Evanhof  v.  State  Industrial  Accident  Com.,  78  Or.,  503. 
(See  also  Hawkins  v.  Bleakly,  37  Sup.  Ct.,  255.) 

*  Jensen  v.  So.  Pacific  Co..  215  V  V..  51  I. 
In  re  Opinion  of  [ustices,  209  Mass.,  007. 
Greene  v.  Caldwell.  170  kv..  571. 
Deibeikis  v.  /.  .  261    111..   151. 

State  v.  Creamer,  85  Ohio  State,  349. 

•  isv.  Falk  Co.  (Wis.).  133  X.  W..  209. 
(See  also  A".  Y.  Central  R.R.  v.  White,  37  Sup.  Ct.,  217,  affirming  216  X.  Y.. 
653.) 

327. 
v.  Creatrn  tate,  349. 

(  \m  v.  A .  /:  !  55 !- 

/',  ■ .  L02  N.  I''..,  932, 

1  Sini,  \ .  Creami  state,  •!  19. 

L54  X.  \\ ..  ! 

Affii  n  .  Ct.,261.  D 

/. 

inn. 

9  Mountc  ■  581. 

Mc 

I.  .  '-'<'>s. 

i  S 

75  V  i81 

Rep.,  260. 

17 


AiuuuioN  of  Common-Law  Defenses 

V  incident  accompanying  the  subversion  of  the 
common-law  system  of  liability  has  attracted  so  much 
attention,  excited  so  much  popular  discussion,  or  been  BO 
frequently  or  bitterly  contested  in  court  as  the  abrogation 
of  the  customary  defenses  of  contributory  negligence, 
assumption  of  risk  and  fellow-service.  The  compulsion 
which  the  State  has  exercised  by  abolishing  these  defenses 
or  interposing  them  to  secure  from  employer  or  employee 
the  acceptance  of  the  new  public  policy  it  desired  to  pro- 
mote is  now  universally  regarded  judicially  as  a  justified 
form  of  what  may  be  termed  constitutional  coercion.1 
The  issue,  as  the  courts  have  seen  it,  is  not  whether  all 
rules  of  liability  between  employer  and  employee  may  be 
abrogated,  but  whether  a  reasonable  body  of  new  rules 
fitting  the  circumstances  of  modern  industry  may  be 
substituted  for  the  old.  An  arbitrary  attempt  to  deprive 
the  employer  of  his  position  under  the  old  system  without 
any  beneficial  status  under  the  new  was  invalidated  in  a 
notable  decision  by  the  Supreme  Court  of  Montana.2 


Views  of  New  York  Court 

The  viewpoint  of  the  judiciary  in  vindicating  the  ex- 
change of  new  regulation  for  old  is  thus  stated  by  Mr. 
Justice  Miller,  affirming  the  validity  of  the  present  Xew 
York  Act,  and  by  Mr.  Justice  Pitney  in  speaking  for  the 
Supreme  Court  of  the  United  States  and  sustaining  the 
same  act  against  later  attack.    Mr.  Justice  Miller  said: 

"No  one  doubts  that  the  doctrine  of  assumption  of  risk  and 
the  fellow-servant  doctrine  also,  developed  by  the  courts  under 
different  conditions  than  those  now  prevailing,  may  be 
limited  or  entirely  abrogated  by  the  legislature.    Acts  having 

1  State  v.  Creamer,  85  Ohio  State,  349. 

Borgnis  v.  Folk  Co.,  147  Wis.,  327. 

Crooks  v.  Tazewell  Coal  Co.,  263  111.,  343. 

Matheson  v.  Minneapolis  Street  Ry.  Co.,  126  Minn.,  286. 

Shade  v.  Ash  Grove  Lime  15  Portland  Cement  Co.,  92  Kan.,  146;  93  Kan.,  257. 

Greene  v.  Caldwell,  170  Ky.,  571. 

Young  v.  Duncan,  218  Mass.,  346. 

Sexton  v.  Newark  Dist.  Telegraph  Co.,  84  N.  J.  Law,  85. 

Western  Metal  Supply  Co.  v.  Pillsbury  (Cat),  156  Pac,  491. 

Middleton  v.  Texas  Power  15  Light  Co.  (Tex.),  1S5  S.W.,  556. 

Jensen  v.  So.  Pacific  Co.,  215  N.  Y.,  514. 

Anderson  v.  Carnegie  Steel  Co.  (Pa.),  96  Atlantic,  215. 

Cons.  Arizona  Smelting  Co.  v.  Ujack,  15  Arizona,  382. 
*  Cunningham  v.  N.  W.  Improvement  Co.  (Mont.),  119  Pac,  554. 

18 


that  power  have  been  sustained  by  repeated  decisions  of  this 
court.  The  power  to  limit  or  take  away  must  also  involve  the 
power  to  extend.  At  the  common  law  the  servant  was  held 
to  assume  by  implied  contract  the  ordinary  risks  of  employ- 
ment, including  the  risk  of  a  fellow-servant's  negligence,  and 
even  negligence  imputable  to  the  master  if  the  danger  was 
obvious,  or  with  knowledge  of  it  the  servant  voluntarily  con- 
tinued in  the  employment.  It  would  not  be  a  great  extension 
of  that  doctrine  for  the  legislature  to  provide  that  the  em- 
ployee should  assume  the  risk  of  accidental  injuries,  and  if 
that  can  be  done  it  is  certainly  competent  for  the  legislature 
to  provide  by  the  creation  of  an  insurance  fund  for  the  limited 
compensation  of  the  employees  for  all  accidental  injuries 
regardless  of  whether  there  was  a  cause  of  action  for  them  at 
common  law."     {Jensen  v.  S.  P.  Co.,  215  N.  Y.  514.) 

Justice  Pitney  for  Supreme  Court  of  the 
United  States 

Mr.  Justice  Pitney  said: 

"Nor  is  it  necessary,  for  the  purposes  of  the  present  case,  to 
say  that  a  State  might,  without  violence  to  the  constitutional 
guaranty  of  'due  process  of  law,'  suddenly  set  aside  all  com- 
mon-law rules  respecting  liability  as  between  employer  and 
employee,  without  providing  a  reasonably  just  substitute. 
Considering  the  vast  industrial  organization  of  the  State  of 
New  York,  for  instance,  with  hundreds  of  thousands  of  plants 
and  millions  of  wage-earners,  each  employer  on  the  one  hand 
having  embarked  his  capital,  and  each  employee  on  the  other 
having  taken  up  his  particular  mode  of  earning  a  livelihood,  in 
reliance  upon  the  probable  permanence  of  an  established  body 
of  law  governing  the  relation,  it  perhaps  may  be  doubted 
whether  the  State  could  abolish  all  rights  of  action  on  the  one 
hand,  or  all  defenses  on  the  other,  without  setting  up  some- 
thing adequate  in  their  stead.  No  such  question  is  here  pre- 
sented, and  we  intimate  no  opinion  upon  it.  The  statute  under 
consideration  sets  aside  one  body  of  rules  only  to  establish 
another  system  in  its  place.  If  the  employee  is  no  longer  able 
to  recover  as  much  as  before  in  case  of  being  injured  through 
the  employer's  negligence,  he  is  entitled  to  moderate  com- 
pensation in  all  cases  of  injury,  and  has  a  certain  and  speedy 
remedy  without  the  difficulty  and  expense  of  establishing 
negligence  or  proving  the  amount  of  the  damages.  Instead  of 
assuming  the  entire  consequences  of  all  ordinary  risks  of  the 
occupation,  he  assumes  the  consequences,  in  excess  of  the 
scheduled  compensation,  of  risks  ordinary  and  extraordinary. 
On  the  other  hand,  if  the  employer  is  left  without  defense 
respecting  the  question  of  fault,  he  at  the  same  time  is  assured 
that  the  recovery  is  limited,  and  that  it  goes  directly  to  the 

19 


relief  of  the  designated  beneficiary.  And  just  as  the  em- 
ployee's assumption  of  ordinary  risks  at  common  law  pre- 
sumably was  taken  into  account  in  fixing  the  rate  of  wages, 
so  the  fixed  responsibility  of  the  employer,  and  the  modified 
assumption  of  risk  by  the  employee  under  the  new  system, 
presumably  will  be  reflected  in  the  wage  scale.  The  act  evi- 
dently is  intended  as  a  just  settlement  of  a  difficult  problem, 
affecting  one  of  the  most  important  of  social  relations,  and  it  is 
to  be  judged  in  its  entirety."  (New  York  Central  R.R.  Co.  v. 
Sarah  White,  243  U.S.  188,  decided  March  6,  1917.) 

Consensus  of  State  Opinions 

The  substance  of  these  two  statements  expresses  similar 
conclusions  reached  by  the  courts  of  last  resort  of  Con- 
necticut, California,  Iowa,  Kentucky,  Kansas,  Massa- 
chusetts, Rhode  Island,  Texas,  Washington,  Minnesota, 
Michigan,  New  Hampshire,  New  Jersey,  New  York, 
Oregon,  Pennsylvania,  West  Virginia,  and  Wisconsin.1 
Each  vindicated  the  substitution  of  the  new  system  for  the 
old,  the  abrogation  of  some  or  all  of  the  common-law 
defenses  as  a  means  of  securing  its  adoption,  and  held  it 
proper  to  infer  an  election  by  employer  or  employee  from 
either  their  positive  affirmation  or  their  failure  to  reject, 
as  the  statute  provided.2 

Other  Specific  Objections  Urged 

The  courts  have  likewise  met  many  objections  to  the 
detail  of  specific  legislation  and  their  decision  thereon 
serves  to  illuminate  the  subject.  Thus  it  has  been  held 
that  an  act  is  not  invalid,  although  severely  restricting  the 
previous  freedom  of  action,3  or  because  it  establishes  a 
different  or  an  unusual  practice  or  provides  radical  changes 
in  either  procedure  or  rules  of  evidence.  Neither  is  an 
act  invalidated  by  limiting  its  provisions  to  hazardous 
employments  or  placing  upon  one  hazardous  employment 
an   obligation    not   likewise    imposed    upon    another,4   or 

1  See  footnote  1,  page  18,  for  cases  adjudicated  in  certain  of  these  states. 

2  See  in  this  connection  the  interesting  statement  of  Mr.  Justice  Van  Deventer, 
Employers'  Liability  '  mdau  v.  N.  Y.,  N.  H.  y  H.  R.R.,  223  U.  S.  1. 

zBorgnisv.  Falk  Co.,  147  Wis., 

rn  Metal  Supply  Co.  v.  Pillsbury  (Cal.),  156  Pac.  491. 

State  v.  Creamer,  85  Ohio  St.,  349. 
4  State  v.  Creamer,  85  Ohio  St..  ■ 

State  v.  Clausen  (Wash.),  117  Pac,  1101. 

Jensen  v.  So.  Pacific  Co..  215  X.  V..  51  1. 

A -.  Y.  Central  R.R.  Co.  v.  White,  37  Sup.  Ct.  Rep.,  247. 

20 


because  it  requires  contributions  from  an  employer  in  a 
particular  kind  of  employment  and  not  from  all  em- 
ployers.1 Neither  is  an  act  destroyed  by  protecting  its 
awards  against  contracts  obtained  from  the  employee 
which  would  nullify  them,2  nor  by  the  fact  that  it  includes 
or  excludes  non-resident  aliens.3  Nor  is  its  legality  affected 
by  the  creation  of  a  special  tribunal  to  administer  it,4  the 
shifting  of  the  burden  of  proof  from  employee  to  em- 
ployer,5 nor  because  it  works  somewhat  unequally  with 
respect  to  different  individuals,6  for  that  is  the  necessary 
result  of  even  fair  classification. 


Who  May  Question  Validity 

Neither  employer  nor  employee  may  raise  objections 
on  the  other's  behalf;  they  cannot  attack  the  validity  of 
an  enactment  which  affects  the  right  of  the  other  but  not 
their  own.7  Neither  can  attack  the  validity  of  an  act 
which  he  has  elected  to  accept,  unless  upon  the  ground  of 
undue  duress  in  exercising  the  option.  Issues  outside  of 
the  law  or  the  facts  of  the  case  presented  cannot  be  urged 
against  the  validity  of  the  statute.8  The  employer  who 
is  not  accepting  an  elective  act  cannot  assail  it  because  it 
denies  to  an  employer  who  has  the  right  of  a  jury  trial.9 
In  other  words,  moot  questions  or  merely  supposititious 
constitutional  rights  cannot  be  asserted,  but  only  such 
rights  as  may  be  taken  from  the  individual  by  the  pro- 
ceeding before  the  court. 

1  Id.  Mountain  Timber  Co.  v.  Washington,  75  Wash.,  581. 

2  In  re  Opinion  of  Justices,  209  Mass.,  607. 
Hawkins  v.  Bleakly,  37  Sup.  Ct.  Rep.,  257. 

Hunter  v.  Colfax  Cons.  Coal  Co.  (Iowa),  154  N.  W.,  1037. 

3Gregutis  v.  Waclark  Wire  Works  (N.  J.),  91  Atlantic,  98. 
Victor  Chemical  Works  v.  Industrial  Board  (111.),  113  N.  E.,  173. 
Petrozino  v.  American  Mutual  Liability  Co.,  219  Mass.  498. 

4  Hawkins  v.  Bleakly,  220  Fed.,  378;  37  Sup.  Ct.  Rep.,  255. 

6  Id.  Mobile  J.  y  K.  C.  R.  Co.  v.  Turnipseed,  219  U.  S.,  35. 

6  State  v.  Creamer,  85  Ohio  State,  349. 

Hunter  v.  Colfax  Cons.  Coal  Co.  (Iowa),  154  N.  W.,  1037. 
Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.,  686. 

7  Jeffrey  v.  Blagg,  90  Ohio,  376.    Affirmed  235  U.  S.  571. 

8  Sexton  v.  Newark  Dist.  Telegraph  Co.,  84  N.  J.  Law,  85. 

9  Wheeler  v.  Contocook  Mills  Corp.,  11  N.  H.,  551. 

21 


What  Risks  Remain  under  Compensation 

Several  states,  notably  Massachusetts,1  are  finding  no 
little  difficulty  in  determining  or  defining  what  risk  of  em- 
ployment, if  any,  remains  with  the  employee  under  a 
compensation  act.  Under  the  most  liberal  provisions  of 
law  there  must  still  remain  rational  distinctions  between 
limited  insurance  against  the  risks  of  employment  and 
those  of  existence.2 


1  McXichols  Case,  215  Mass.,  497. 
In  re  Hurl,  217  Mass.,  223. 
In  re  Madden,  222  Mass.,  487. 

Newman  v.  Newman,  155  N.  Y.  Supp.,  665.    Affirmed  113  N.  E.,  332. 
Putnam  v.  Murray,  160  N.  Y.  Supp.,  811. 

*  Hoenigv.  Industrial  Commission  (Wis.),  150  N.  W.,  996. 
Klawmski  v.  Lake  Shore  tf  Mich.  So.  Ry.  (Mich.),  152  N.  W.,  213. 
State  v.  Dist.  Court  of  Ramsey  County  (Minn.),  153  N.  W.,  119. 
Mahowold  v.  Thompson  &  Starrett  Co.  (Minn.),  158  N.  W.,  913. 
City  of  Milwaukee  v.  Althotf  (Wis.),  145  N.  W.,  238. 

22 


Ill 

THE  PERSONS  TO  WHOM  COMPENSATION 
APPLIES 

Influence  of  British  Phraseology 

All  compensation  legislation  being  highly  remedial  in 
character  is  broadly  construed  to  effect  the  legislative 
purpose,  but  not  so  as  to  include  either  injuries  or  persons 
not  intended  to  be  comprehended  within  its  terms.  The 
construction  and  definition  given  by  British  courts  to 
words  and  phrases  which  have  been  translated  from  that 
jurisdiction  into  United  States  legislation,  while  not 
dominating,  is  most  influential  in  the  great  body  of 
decisions.1 

Influence  of  Administrative  Construction 

So,  too,  our  courts  do  not  regard  the  interpretation  and 
construction  given  by  the  various  administrative  boards, 
generally  lay  bodies,  as  conclusive,  although  where  long 
continued  they  are  not  likely  to  be  disregarded  unless 
judicial  construction  makes  such  action  necessary. 

Employer  Primarily  Liable 

In  all  acts  it  is  the  employer  who  is  primarily  liable  for 
the  payment  of  compensation  except  where  either  he  is 
required  or  elects  to  pay  a  fixed  premium  into  a  state 
accident  fund.  His  personal  liability  is  not  relieved  by 
insurance  with  any  private  underwriter.2 

Who  are  Employers 

An  "employer"  may  be  an  individual,  a  partnership,  a 
corporation,  a  receiver,  or  any  individual  person,  collection 
or  association  of  persons  included  within  the  terms  of  an 
act,  who  meets  the  test  that  there  exists  a  contract  of 
service  between  him  and  employees,  otherwise  within  the 
statute,  and  subject  to  the  employer's  control  in  respect  to 

1  Newman  v.  Newman,  155  N.  Y.  Supp.,  665. 
Hotel  Bond  Co.  Appeal,  89  Conn.,  143. 

Grand  Rapids  Lumber  Co.  v.  Blair  (Mich.),  157  N.  W.,  29. 
Gove  v.  Royal  Indemnity  Co.,  223  Mass.,  187. 

2  In  the  absence  of  statute  Massachusetts  appears  to  hold  contra,  though  the 
point  has  not  been  finally  decided  judicially. 

23 


the  action  out  of  which  an  injury  arises.1  The  term 
"employer"  may  include  both  private  and  public  em- 
ployers, although  we  are  concerned  here  only  with  the 
former,  but  it  does  not  in  any  act  include  all  persons 
giving  employment.  Thus  it  may  include  only  employers 
in  whole  or  in  part  within  specific  occupations,  either 
enumerated  or  defined,  or  only  those  who  employ  "for 
profit,"  or  the  number  of  whose  employees,  as  in  Okla- 
homa, is  three  or  more,  or  as  in  Vermont,  eleven  or  more. 

Contemporaneous  Employment 
Employment  may  be  contemporaneous,  that  is,  the 
employee  may  be  in  the  service  of  two  or  more  persons 
and  may  be  entitled  to  compensation  from  any  one  or 
all.2  Thus,  a  watchman  guarding  the  property  of  several 
concerns  may  recover  his  compensation  from  the  one 
upon  whose  premises  he  is  injured.3  Under  acts  which 
distinguish  between  principals  and  contractors  the  em- 
ployer may  be  a  person  other  than  he  whom  the  workman 
immediately  serves.4 

Who  are  Employees 
The  term  "employee"  covers  a  greater  or  lesser  number 
of  persons  in  accordance  with  the  occupations  included 
within  the  various  acts.  In  every  instance,  however,  an 
employee  is  a  person  between  whom  and  the  employer 
there  is  an  actual  or  expressed  contract  of  service,  one 
essential  element  of  which  in  all  compensation  legislation 
is  an  implied  consideration  to  make  provision  in  specified 
terms  for  such  injuries  as  are  within  the  act.  The  term 
usually  embraces  some  continuity  of  service  so  as  to 
exclude  occasional  or  special  service.  "  Casual  labor," 
concerning  the  definition  of  which  there  is  little  unanimity,5 
is  usually  excluded  from  the  benefit  of  compensation  acts. 
Delaware,  North  Dakota,  South  Dakota,  Pennsylvania, 
Rhode  Island,  Wyoming,  California,  Minnesota,  and 
Missouri  exclude  such  labor  when  not  employed  for  the 
employer's  business.  Sixteen  other  states  exempt  it  in 
terms.6 

1  Hillestad  v.  Industrial  Insurance  Commission,  80  Wash.,  426. 
Virginia  1$  Rainy  Lake  Co.  v.  Dist.  Court,  128  Minn.,  43. 

2  Jones  v.  Witherbee,  Sherman  fcf  Co.,  2  N.  Y.  St.  Dep.  Rep.,  483. 
-  Western  Metal  Supply  Co.  v.  Pillsbury,  150  Pac,  491. 

4  Wallace  v.  Pratchner,  2  Cal.  I.  A.  C.  Dec.  661. 

5  Thompson  v.  Twiss  (Conn.),  97  Atlantic,  328. 
State  v.  District  Court  (Minn.),  155  N.  W.,  103. 

•Colo.,  Conn.,  Idaho,  Ind.,  la.,  Pa.,  Me.,  Md.,  Neb.,  N.  J.,  N.  Mex.,  O., 
Tenn.,  Utah,  Vt.,  W.  Va. 

24 


A  nurse  or  mining  engineer  has  been  held  not  to  be  an 
"employee,"  though  the  term  may  include  a  person  other 
than  one  engaged  in  manual  labor.1  The  fact  that  one  at 
work  is  paid  by  the  piece,  the  day,  or  the  job  will  not 
prevent  him  from  being  an  employee,2  but  the  service 
must  have  some  element  of  wages  and  not  be  merely 
voluntary.3  A  workman's  son  engaged  by  his  father  to 
help  him,4  or  a  partner,5  or  one  working  with  another  on 
shares,  but  not  subject  to  his  control  or  direction,  does  not 
meet  the  legal  test  of  an  "employee."6 

Compensation  of  Injured  Minors 

Minors  where  at  work  under  the  age  permitted  by  the 
state  statute,  although  otherwise  within  a  compensation 
act,  may  not  recover  compensation  for  injuries  as  em- 
ployees in  New  Jersey,7  Washington,8  Minnesota,9  or 
Wisconsin.10  This  condition,  however,  is  qualified  in  New 
Jersey  and  Wisconsin.11  In  California,12  Iowa,13  and  West 
Virginia,14  on  the  contrary,  under  the  same  conditions  the 
injured  minor  may  receive  compensation. 


Coverage  of  Compensation  Acts 

About  half  the  compensation  states  exclude  a  great 
number  of  persons  from  the  benefits  of  their  acts  either 
by  arbitrary  definitions,  which  exclude  many  employ- 
ments, or  by  the  specific  exception  of  particular  occupa- 

1  Opinion  Attorney  General  (Minn.),  Workmen's  Compensation  Act,  Bulletin 
13,  page  32.    Report  Nevada  Industrial  Commission,  1914,  page  26. 

Skinner  v.  Conn.  School  for  Imbeciles,  1  Conn.  Comp.  Dec.  106. 

2  Gove  v.  Royal  Indemnity  Co.,  223  Mass.,  187. 
In  re  Rheinwald,  153  N.  Y.  Supp.,  598. 
Malloll  v.  Healey,  2  Cal.  I.  A.  C.  Dec.  103. 

3  Lynch  v.  Abel,  1  Conn.  Comp.  Dec,  520. 

4  McDougall  v.  McDougall  (1911),  4  B.  W.  C.  C,  373  Ct.  of  Session. 

5  Sayers  v.  Gerard,  1  Cal.  I.  A.  C.  Dec,  352. 

6  Ferranti  v.  Kennedy,  1  Conn.  Comp.  Dec,  196. 

7  Helzel  v.  Wasson  Piston  Ring  Co.  (N.  J.),  98  Atlantic,  306. 

8  Hillestad  v.  Industrial  Insurance  Commission,  80  Wash.,  426. 

9  Opinion  Attorney  General  (Minn.),  Workmen's  Compensation  Act,  Bulletin 
9,  page  22. 

)»  Stetz  v.  Mayer  Boot  eJ  Shoe  Co.    (Wis.),  156  N.  W.,  971. 

11  Foth  v.  Macomber,  etc.,  161  Wis.,  549. 

12  Shanton  v.  Masterson,  2  Cal.  I.  A.  C.  Dec,  707. 

13  Opinion  Special  Counsel  to  la.  Industrial  Commission  (1915),  page  922. 

14  Rhodes  v.  J.  B.  B.  Cool  Co.,  90  S.  E.  70(5. 

25 


dons.  Fourteen  states1  and  Alaska  in  effect  make  insur- 
ance compulsory  only  for  hazardous  employments.  New 
York,  however,  designates  Forty-two  "hazardous"  classi- 
fications, and  by  amendment  of  191S  adds  a  new  group 
which  includes  "all  other  employments  not  hereinbefore 
enumerated,"  in  which  four  or  more  workmen  or  operatives 
are  regularly  employed.  Four  other  states'2  specify  a  list 
which  practically  comprehends  all  industrial  pursuits. 
Alaska  covers  only  employers  of  five  or  more  persons  en- 
.';  in  mining  operations.  The  descriptive  terms  vary 
greatly.  New  Hampshire  includes  five  employments 
which  are  termed  "dangerous."  Kansas  and  Arizona 
confine  the  act  to  "especially  dangerous"  employments, 
Montana  to  "inherently  hazardous,"  four  states3  to  "haz- 
ardous," and  five  more  to  "extra  hazardous"  occupations.4 

Exemptions  of  Agricultural  Labor 
In  the  absence  of  definite  or  even  arbitrary  standards  of 
comparative  hazard  such  legislation  tends  to  become 
indefinite  and  uncertain.  For  instance,  only  New  Jersey 
specifically  includes  agricultural  employees  within  its 
act.  Thirty  states  specifically  exclude  them.  In  others 
the  exemption  appears  to  be  practically  accomplished  by 
excluding  employers  of  less  than  a  fixed  number  of  persons. 
In  no  classification  of  "dangerous"  or  "hazardous" 
occupations  is  agricultural  labor  included.  Yet  European 
and  Canadian  official  reports  and  all  our  own  private 
insurance  experience  and  rates  unite  to  demonstrate  that 
many  forms  of  agricultural  employment  are  comparatively 
more  hazardous  than  the  mechanical  trades. 

A  report  of  the  United  States  Bureau  of  Labor  Statis- 
tics estimates  that  32  per  cent  of  our  employees,  calculated 
upon  the  census  returns  of  1910,  are  not  within  the  terms 
of  compensation  legislation,  and  of  that  number  33.9  per 
cent5   are  excluded  through  the  exemption  of  agriculture. 

Domestic  Service 
Except  in  New  Jersey,  domestic  service  is  exempted 
from  compensation  acts,  either  by  specific  exception  in 
some  twenty  states,  by  the  exclusion  of  employments  not 
conducted  for  gain,  or  of  employers  of  less  than  a  fixed 
number  of  persons. 

..  111.,  Kan.,  La.,  Md,  Mont.,  X.  II.,  X.  J„  X.  Dak.,  X.  Mex.,  Okla., 
Ore.,  Wash.,  \\ 

2  111.,  Md.,  Ore.,  Wash. 

3  La.,  Okla.,  Ore.,  N.  Y. 
Mil.,  Md..  X.  Mex.  Wash.,  \\ 

'Bureau  of  Labor  Statistics  (U.  S.  Dept.of  Labor  Bulletin,  Xo.  203,  page  71). 

26 


Small  Employers 

Seventeen  states  exclude  small  employers,  varying  from 
Oklahoma  exempting  employers  of  less  than  three  persons, 
to  Vermont  exempting  those  of  less  than  eleven.  Of  the 
effect  of  these  provisions,  Professor  Fisher,  of  New  York 
University,  declares: 

"Only  5  of  the  13  States  which  profess  to  limit  their  laws 
to  dangerous  trades  took  any  account  of  the  numbers  em- 
ployed; and  of  the  16  States  which  have  numerical  exemptions 
only  the  same  5  professed  generally  to  distinguish  between 
hazardous  and  non-hazardous  trades."1 

Percentage  of  Labor  under  Compensation  Acts 
The  United  States  Bureau  of  Labor  Statistics  in  the 
report  just  mentioned  estimated  that  68  per  cent  of  our 
employees  are  included  within  compensation  acts.  The 
percentage  is  estimated  to  be  much  higher  in  many  of 
the  leading  industrial  states  and  lower  in  the  agricultural.2 
Later  estimates  revise  this,  and  it  is  now  commonly  given 
as  50  per  cent. 

Various  Exclusions  by  Definition  or  Construction 
Exclusive  of  enumerated  groups  of  occupations  or  condi- 
tions of  employment  specifically  exempted,  failure  to 
clearly  define  other  important  terms  narrows  or  broadens 
the  definition  of  "employer"  and  "employee"  in  many 
statutes.  Thus  the  terms  "sub-contractor"  or  "inde- 
pendent contractor"  are  more  or  less  extensive  in  different 
acts.  Massachusetts  and  New  Jersey  present  contrary 
ideas  in  their  statutes  respecting  the  obligation  of  con- 
tractors as  employers.3  West  Virginia  excludes  traveling 
salesmen  from  its  act  by  definition;  the  courts  of  Michigan 
and  California  have  done  so  by  interpretation.4  Minne- 
sota, on  the  contrary,  includes  them  if  in  the  employ  of  a 
Minnesota  employer,5  and  New  Jersey  while  in  the  state 
whether  residents  of  it  or  not.6     Although  coal  mining  is 

Address  to  Conference  on  Social  Insurance,  Washington,  D.C.,  December, 
1916.  Bureau  of  Labor  Statistics, U.  S.  Dept. of  Labor,  Bulletin  212,  pages  364-5. 

2  Bureau  of  Labor  Statistics  (U.S. Dept.  of  Labor,  Bulletin  No. 203, page 66) . 

3  Kennedy  v.  Kaufman  y  Sons  Co.  (N.  J.),  91  Atlantic,  99. 
Workmen's  Compensation  Act,  Mass.,  pt.  3,  Sec.  17. 

4  Keyes-Davis  Co.  v.  Alderdyce,  Op.  Mich.  Industrial  Accident  Board,  Bulletin 
No.  3,  page  19. 

Croad  v.  Paraffine  Paint  Co.,  1  Cal.  I.  A.  C.  Dec,  179. 

5  Opinion    of    Attorney    General,    Minn.    Workmen's     Compensation    Act. 
Bulletin  9,  page  17. 

6  American  Radiator  Co.  v.  Rogge,  86  N.  J.  Law,  436. 

27 


one  ol  the  leading  industrial  pursuits  oi  Tennessee,  insur- 
ance is  voluntary  on  the  part  of  employers  of  coal  miners 
in  that  state  and  failure  u>  insure  involves  no  additional 
liability. 

EXTRA-T]  RRITORIAL    APPLICATION 

In  sixteen  states  the  employer  must  indemnify  although 
his  employee  be  injured  while  in  another  jurisdiction.1 
In  nearly  an  equal  number  of  states  such  is  not  the  law. 
In  thirteen  the  statute  is  indefinite.  Alaska,  Hawaii, 
California,2  Connecticut,3  and  Rhode  Island1  require  com- 
pensation tor  injuries  received  outside  the  state  if  the 
contract  of  service  was  made  within  it.  Under  like  cir- 
eumstances  the  acts  of  Maryland  and  Pennsylvania  do  not 
apply.  Maryland  compromises,  following  the  latter  rule 
except  for  mining  employees  injured  while  at  work  in  a 
mine  the  entrance  of  which  is  within  the  state.  By  con- 
struction Nevada,5  Minnesota,"  Michigan,7  and  Massa- 
chusetts' have  held  their  acts  inapplicable  to  injuries  re- 
ceived outside  the  state.  The  courts  of  New  Jersey,9  New 
York,10  and  Washington11  without  statutory  provision  on 
the  subject,  hold  their  respective  acts  applicable  to 
injuries  received  outside  the  state  while  in  pursuance  of 
the  employee's  occupation.  . 

Connecticut  holds  that  compensation  is  obligatory  for 
an  accident  occurring  elsewhere,  the  contract  of  em- 
ployment being  made  in  Connecticut,  and  likewise  for  an 
injury  received  while  at  work  in  Connecticut  upon  a 
contract  of  service  made  in  New  York.12  New  Jersey  will 
entertain  and  enforce  a  claim  for  compensation  for  an 
injury  received  in  New  Jersey  by  an  employee  resident  of 

1  Col.,  Conn..  Idaho,  Ind.,  Kv,  Me.,  Mo.,  Nov.,  N.  J.,  N.  Y.,  Ohio,  S.  Dak., 
Utah,  Va.,  Vt.,  W.  Va. 

2  Sandberg  v.  Kruse,  1  Cal.  I.  A.  C.  Dec,  441.     But  see  North  Alaska  Salmon 
Co.  v.  Pillsbury,  162  Pacific,  93. 

3  Kennerson  v.  Thames  Toiuboat  Co.,  89  Conn.,  367. 
*  Grinnell  v.  Wilkinson  (R.  I.),  98  Atlantic,  103. 

5  Report  Nevada  Industrial  Comm.  (1914),  page  25. 

6  Opinion  Attorney  General  Minn.  Compensation  Act,  Bulletin  9,  page  15. 

7  Keyes-Davis  Co.  v.  Allerdyce,  Opinion  Mich.  Federal  Industrial  Accident 
Board,  Bulletin  No.  3,  page  l9. 

6  Gould's  Case,  215  Mass.,  480. 

8  Davidheiser  v.  Hay  Foundry  '-£  Iron  Works,  87  N.  J.  Law,  688. 

10  Post  v.  Burger  13  Gohlke,  216  N.  Y.,  544. 

11  Rulings  Washington  Industrial  Ins.  Comm.  (1915),  page  5. 

12  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.,  367. 
Cohen  v.  Union  News  Co.,  1  Conn.  Com.  Dec,  62. 

28 


another  state  and  under  contract  of  service  made  in  such 
state.1  It  was  suggested  that  the  effect  of  these  opinions 
was  to  permit  a  double  recovery  of  compensation,  to 
which  the  court  of  New  Jersey  has  replied,  "Recovery  of 
compensation  in  two  states  is  no  more  illegal  and  is  not 
necessarily  more  unjust  than  recovery  upon  two  policies  of 
accident  or  life  insurance."2 

Minnesota  presents  still  another  aspect  of  these  conflict- 
ing views  and  practices  by  denying  compensation  to  a 
workman  employed  in  Minnesota  but  injured  in  Wis- 
consin, holding  that  he  cannot  be  deemed  ignorant  of  the 
act  of  the  state  where  his  employment  service  is  performed 
and  his  redress  must  be  had.3 


Causes  of  Conflicting  Judicial  Opinion 

These  conflicts  of  opinion  apparently  arise  from  funda- 
mentally different  judicial  concepts  of  the  nature  of 
workmen's  compensation.  The  Minnesota  Court  regards 
it  as  creating  a  tort  relation,  providing  redress  for  a 
wrong  caused  by  another's  misconduct  and  therefore 
governed  by  the  law  of  the  place  of  injury  and  not  the  law 
of  the  place  where  the  employment  contract  was  made. 
The  courts  of  New  Jersey,  Connecticut,  and  New  York 
regard  the  new  system  as  resting  upon  the  creation  of 
a  new  contract,  not  a  tort  relation,  and  to  provide  its 
relief  independently  of  the  conduct  of  either  party  with 
respect  to  the  circumstances  of  the  injury,  and  therefore 
enforceable  by  comity  in  the  court  of  any  state.  These 
decisions  serve  to  illustrate  the  need  of  not  merely  a  uni- 
form system  of  regulation,  but  a  harmonious  conception 
of  the  fundamental  distinction  between  the  old  system 
of  employer's  liability  and  the  new  system  of  workmen's 
compensation. 

Interstate  Commerce 

The  general  powers  of  a  state  to  enact  compensation 
legislation  are  no  longer  open  to  question.  The  line  of 
demarcation  as  to  employees  engaged  in  interstate  com- 
merce has  been  carefully  set  forth.     In  the  case  of  New 

1  American  Radiator  Co.  v.  Rogge,  86  N.  J.  Law,  436. 

West  Jersey  Trust  Co.  v.  Pi  Ry.  Co.,  88  NT.  J.  Law,  102. 

2  Rounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  371. 

3  Johnson  v.  Nelson,  128  Minn.,  158. 

29 


York  Central  R.R.  Company  v.  Winfield,1  it  was  definitely 
determined  that  Congress,  having  entered  the  field,  the 
a  no  longer  have  any  right  to  legislate  with  respect  to 
employees  01  interstate  railroads  while  they  themselves 
arc  engaged  in  furthering  interstate  commerce,  although 
the  injured  employee  may  have  no  remedy  under  the 
Federal  Liability  Act,  and  it  was  further  decided  in  Erie 
R.R.  Co.  v.  \\  infield,-  that  the  states  have  no  right  to 
require  of  interstate  carriers  or  their  interstate  employees 
to  make  an  election  between  the  provisions  of  the  Federal 
law  and  any  state  compensation  law,  or  to  presume  or 
impute  an  election  to  them  by  any  statutory  presumptions. 
These  decisions  definitely  place  all  employees  of  interstate 
railroads,  engaged  in  furthering  interstate  commerce, 
under  the  liability  act  applicable  to  railroads  and  not 
under  any  state  compensation  laws. 

Admiralty 

In  an  important  case3  it  was  held  that  neither  the 
Federal  Employers'  Liability  Act  nor  a  state  compensation 
law  applied  to  injuries  coming  within  admiralty  jurisdic- 
tion. To  meet  this  situation  Congress,  by  Act  of  October 
6,  1917,  amended  clause  3  of  Sections  24  and  256  of  the 
Judicial  Code,  thereby  saving  to  suitors  the  rights  and 
remedies  under  the  workmen's  compensation  law  of  any 
state  and  giving  to  the  injured  party,  or  his  dependents, 
the  right  to  bring  an  action  in  admiralty  or  submitting 
claim  under  a  state  compensation  plan. 

Power  of   Congress  to   Provide   for  Compensation 

Congress  undoubtedly  possesses  the  power  to  establish 
a  compensation  system  for  employers  and  employees 
operating  carriers  engaged  in  interstate  commerce.  The 
question  is  noticed  only  incidentally  here,  as  we  are 
primarily  concerned  with  compensation  for  industrial 
injury,  although  legislation  or  judicial  decision  relating  to 
it  will  incidentally  affect  many  industrial  employments. 

Compensation  for  Employees  of  Interstate  Carriers 

During  the  first  and  second  sessions  of  the  Sixty-second 
Congress  an  Employers'  Liability  and  Workmen's  Com- 

U.S.,  L47,  37  Sup.  Ct.  Rep.  546. 
_  \A  U.  S.  170,  37  Sup.  Ct.  Rep.,  550. 
3  Southern  Pacific  Co.  v.  Jensen.  -  205;  37  Sup.  Ct.  Rep.,  524. 

30 


pensation  Commission  was  created,  consisting  of  two 
Senators,  two  members  of  the  House,  and  two  private 
citizens,  who  were  authorized  to  investigate  and  report 
on  the  application  of  the  principle  of  workmen's  com- 
pensation to  the  federal  jurisdiction.1  Elaborate  hearings 
were  held  and  a  bill  was  drafted  and  recommended 
applying  the  principle  of  compensation  to  interstate  steam 
railroads.  The  bill  passed  the  Senate  by  a  large  majority, 
was  amended  by  the  House  to  include  interstate  express 
companies,  but  failed  to  receive  further  consideration  in 
the  Senate.  The  second  employer's  liability  act  of  1908 
is  the  only  Congressional  legislation  dealing  with  personal 
injuries  sustained  by  the  employees  of  interstate  carriers. 
It  greatly  modified  the  common-law  rules  of  employer's 
liability,  but  applies  only  to  interstate  railroads. 


State  Cases  Involving  Federal  Jurisdiction 

This  condition  has  led  to  a  number  of  cases  involving 
the  application  of  state  compensation  legislation  to 
injuries  asserted  to  be  within  the  federal  jurisdiction. 
The  acts  of  both  New  York  and  New  Jersey  have  been 
held  to  permit  compensation  for  injuries  sustained  upon 
the  navigable  waters  of  those  states.2  A  New  York 
court  has  held  that  the  exclusiveness  of  the  compensation 
remedy  applies  only  to  suits  at  common  law,  but  that 
where  the  injury  was  sustained  within  the  admiralty  juris- 
diction the  employee  may  choose  either  remedy.3  The 
same  court  likewise  held  the  state  compensation  act  to 
apply  to  injuries  received  by  an  employee  in  interstate 
commerce  to  the  extent  that  such  act  may  operate  "within 
the  jurisdiction  of  the  State  until  Congress  by  entering 
the  field  excludes  state  action."4  The  courts  of  Con- 
necticut, Minnesota,  and  New  Jersey  have  taken  a 
similar  view,  declaring  likewise  that  the  federal  em- 
ployers' liability  act  is  not  exclusive  in  that  it  prevents 
the  states  from  exercising  their  police  power  for  the  pro- 
tection   of    workmen    within    their    respective    common- 

1  Report  Federal  Employers'  Liability  and  Workmen's  Compensation  Com- 
mission, 62d  Congress,  2d  Session,  Senate  Document  No.  338. 

2  Berton  v.  Tietjen  y  Lang  Dry  Dock  Co.,  219  Fed.,  763. 

3  Walker  v.  Clyde  S.  S.  Co.,  215  N.  Y.,  529. 

4  Jensen  v.  So.  Pacific  Co.,  215  N.  Y.,  514. 

31 


wealths.1    The  Supreme  Courts  i>t"  Illinois  and  California 
express  a  diametrically  opposite  opinion.8 

The  decisions  oi  the  Supreme  Court  in  the  cases  herein- 
before cited  under  the  heading  ol  Interstate  Commerce 
have  m»w,  however,  brought  about  practical  unanimity 

ot  decisions  in  the  several  states. 

Dependents 

The  states  differ  very  greatly  in  defining  dependent 
persons  and  in  limiting  or  extending  the  degree  of  de- 
pendency of  those  who  may  have  the  benefit  of  com- 
pensation for  the  accidental  death  of  a  workman.  These 
differences  very  naturally  reflect  variations  in  policy, 
since  the  right  to  give  or  withhold  a  conditional  recovery 
for  death  is  created  entirely  by  statute,  save  in  a  state  like 
Kentucky,  where  a  constitutional  provision  prevents  any 
limitation  on  the  amount  recoverable  for  either  injury  or 
death  due  to  negligence.  This  provision  affected  the 
validity  of  the  first  Kentucky  legislation,3  but  was  over-, 
come  by  providing  a  permissive  agreement  for  employer 
and  employee,  since  the  limitation  applied  to  the  act  of 
the  legislature  and  not  to  the  private  arrangement  of  the 
parties. 

Non-Resident  Alien  Dependents 

Non-resident  alien  dependents  are  an  important  subject 
of  legislative  and  judicial  consideration.  The  mere  fact 
that  a  dependent  is  an  alien  does  not  of  course  bar  re- 
covery without  statutory  intervention.1  New  Hamp- 
shire and  New  Jersey  exclude  non-resident  alien  de- 
pendents from  the  benefit  of  their  respective  acts. 
Twenty-one  states  include  them,  but  fourteen  of  these 
limit  either  the  beneficiaries  or  the  amount  payable.  In 
the  remaining  states,  where  no  statutory  provision  has 
been  made,  the  silence  of  the  legislature  has  in  some  in- 
stances led  them  to  be  included  by  courts  or  commissions. 

1  Kennerson  v.  Thames  Tozvboat  Co.,  89  Conn.,  367. 
Lindstrom  v.  Mutual  S.  S.  Co.  (Minn.),  156  N.  W.,  GOO. 
Sloll  v.  Pac.  Coast  S.  S.  Co.,  205  Fed..  169. 

West  X.  J.  Trust  Co.  v.  Phila.  Is  R.  R.R.  Co.,  88  N.  J.  Law,  102. 

2  Staley  v.  ///.  Cen.  R.R.  Co.,  268  111.,  356. 
S.  P.  Co.  v.  Pillsbury,  170  CaL 

3  Kentucky  State  Journal  Co.  v.  Workmen's  Compensation  Board,  161  Ky.,  562. 

*  Vugic  v.  Youngstown  Sheet  Eff  Tube  Co.,  220  Fed.,  390.    (Applying  Ohio  laws.) 
Pelrozino  v.  Mutual  Liability  Co.,  219  Mass.,  498. 

32 


IV 
THE  NOTICE  OF  INJURY 

Importance  of  Notice  of  Injury 

Every  statute  requires  notice  of  an  injury  as  a  pre- 
requisite to  a  claim  predicated  upon  it.  Such  notice  is 
likewise  of  equal  importance  for  the  purpose  of  providing 
medical  aid  where  it  is  required  or  voluntarily  given  and 
as  a  means  of  preventing  slight  injuries  becoming  serious 
through  infection  or  lack  of  attention. 

Notice  in  Disease  Cases 

Every  court  which  has  given  attention  to  the  subject 
declares,  in  one  way  or  another,  that  an  accident  or  an 
injury  within  the  meaning  of  the  various  acts  is  an  event 
sufficiently  definite  in  time  and  place  to  be  the  subject  of 
specific  notice.  This  fact  is  indicative  of  the  serious 
difficulty  attached  to  giving  requisite  or  necessary  notice 
with  respect  to  many  forms  of  disability  which  have 
gradually  become  included  under  the  phrase  "injury 
arising  in  the  course  of  employment."  The  natural 
tendency  toward  a  broad  application  of  a  remedial 
statute  is  accompanied  by  a  native  difficulty  of  definitely 
describing,  limiting,  or  locating  the  origin  of  disorders  and 
disease  alleged  to  be  caused  or  aggravated  by  accident  or 
injury. 

Actual  Notice 

Notice  is  usually  required  to  be  given  in  writing,  but  it 
is  sufficient  if  actual  notice  of  the  accident  is  had,  and 
this  is  presumed  wherever  a  foreman,  superintendent,  or 
other  representative  or  agent  of  the  individual  or  cor- 
porate employer  is  actually  aware  of  the  accident  or  injury, 
or  is  in  possession  of  facts  sufficient  to  put  a  reasonable 
person  upon  inquiry,  which  inquiry  or  undertaking  would 
naturally  disclose  the  fact  of  injury.1    But  notice  must  be 

1  State  v.  District  Court,  129  Minn.,  423. 
Acherson  v.  National  Zinc  Co.,  96  Kan.,  781. 
Troth  v.  Millville  Bottle  Works  (N.  J.),  98  Atlantic,  435. 
In  re  Bloom  (Mass.),  Ill  North  Eastern,  45. 
Matwic7.uk  v.  Am.  Car  fcff  Foundry  Co.  (Mich.),  155  N.  W.,  412. 
Pellett  v.  Industrial  Comm.  (Wis.),  156  N.  W.,  956. 
Knoll  v.  City  of  Salina  (Kan.),  157  Pac,  1167. 
Schmidt  v.  Baking  Co.  (Conn.),  96  Atlantic,  963. 

33 


of  such  a  nature  that  the  employer  is  not  unfairly  pre- 
judiced,1 for  it  is  an  (.'lenient  <.A  unusual  importance  in  the 
prevention  and  relief  of  accident,  and  it  may  exercise  a 
powerful  influence  on  the  seriousness  and  extent  of  dis- 
ability and  its  legal  consequences. 


1  Malkozvsky  v.  Silbervicz,  1  Conn.  Comp.  Dec,  136. 
Mackay  v.  Am.  Brass  Co.,  1  Conn.  Comp.  Dec,  526. 
Ehrhart  v.  Industrial  Accident  Comm.  (Cal.),  158  Pac,  193. 

34 


THE  ASSURANCE  OF  SYSTEMATIC  RELIEF 

Insurance  Requirements 

Every  compensation  act  makes  the  employers  included 
within  it  limited  insurers  against  the  consequence  of  work 
injury  within  the  amounts  scheduled.  For  the  payment  of 
any  award  the  defendant  employer  is  primarily  liable 
whether  insured  or  not,  and  the  various  states  endeavor 
in  a  variety  of  ways  to  assure  compensation  payments. 

In  five  states  and  one  territory  - —  Nevada,  North 
Dakota,  Oregon,  Porto  Rico,  Washington,  and  Wyoming — 
the  laws  provide  for  a  state  insurance  monopoly.  Nine 
states  —  California,  Colorado,  Maryland,  Michigan,  Mon- 
tana, New  York,  Pennsylvania,  Virginia,  and  Utah  — 
offer  three  methods  of  insurance,  namely:  (1)  state  fund; 
(2)  private  insurance;  (3)  self-insurance  subject  to  legal 
safeguards.  Eighteen  states  and  one  territory  —  Con- 
necticut, Delaware,  Hawaii,  Illinois,  Indiana,  Iowa,  Ken- 
tucky, Maine,  Missouri,  Nebraska,  New  Hampshire,  New 
Jersey,  New  Mexico,  Oklahoma,  Rhode  Island,  South 
Dakota,  Tennessee,  Vermont,  and  Wisconsin  —  give  the 
alternatives  of  private  insurance  or  regulated  self-insur- 
ance. In  Texas  employers  may  insure  either  in  a  private 
or  in  a  semi-mutual  state  company  as  provided  in  the  Act 
of  1913.  Massachusetts  allows  no  alternative  to  private 
insurance,  while  Idaho,  Ohio,1  and  West  Virginia1  provide 
for  a  choice  of  either  a  state  fund  or  controlled  self- 
insurance.  In  Alaska,  Arizona,  Kansas,  Louisiana,  and 
Minnesota  no  insurance  is  compulsory. 


Compelling  Premium  Payments  (Ohio) 

In  some  states,  like  Ohio,  the  State  Industrial  Com- 
mission may  make  a  penal  award  to  an  injured  employee 
whose    employer    has    neither    insured    his    liability    nor 

1  Ohio  and  West  Virginia  permit  self-insurance  only  after  regular  contribution 
has  been  made  to  the  state  fund,  which  in  effect  gives  monopoly  to  state  in- 
surance. 

35 


established  his  capacity  for  self-insurance.1  This  right 
of  the  State  to  substantially  compel  the  insurance  of  the 
employer's  liability  was  recently  sustained  by  the  Supreme 
Court  of  Ohio. 


Uniformity    of     Liability    Required     by    National 

Business 

The  larger  part  of  business  in  the  United  States  extends 
its  operations  into  more  than  one  state.  This  fact,  in  con- 
nection with  a  now  well-marked  tendency  to  practically 
realize,  by  specific  obligation,  the  insurance  of  the  em- 
ployer's liability,  makes  it  more  than  ever  essential  that 
there  shall  be  greater  uniformity  in  the  language  of 
statutory  obligation  and  increasing  harmony  in  con- 
struction and  interpretation.  Every  modification  or 
restrictive  phraseology  of  liability,  every  loose  or  am- 
biguous word  of  obligation,  every  novel  or  indefinite  term 
carrying  hidden  possibilities  of  judicial  construction,  adds 
a  higher  margin  of  premium  payment  to  cover  the  neces- 
sary risks  of  contingent  insurance  liability.  Compensa- 
tion statutes  create  insurance  contracts  and  should  there- 
fore possess  a  meaning  as  definite  and  certain  as  human 
intelligence  guided  by  experience  and  selected  phraseology 
of  fixed  meaning  can  make  them. 


Costs  of  Compensation  Lnsurance 

Minimum  insurance  rates  have  been  established  by  the 
rating  boards  of  the  various  states  for  the  purpose  of 
assuring  a  sound  actuarial  basis  for  liability  companies. 
The  rates,  which  run  from  about  ten  cents  for  clerical 
workers  to  five  and  six  dollars  and  even  higher  for  such 
hazardous  occupations  as  railroad  operating,  are  based  on 
each  hundred  dollars  of  the  weekly  payroll,  usually 
averaged  over  the  year,  and  constitute  the  annual 
premium.  At  the  present  time,  the  several  states  vary 
considerably    in    the    premium    rates    as    well    as    in    the 

1  Ohio  Compensation  Act,  103  Ohio  Laws,  page  72,  Supplemental  Act,  Section 
27. 

36 


amounts  of  compensation.1  Moreover,  the  costs  of  com- 
pensation insurance,  a  considerable  item  for  industry  at 
best,  have  been  in  many  instances  increased  by  indefinite 
and  ambiguous  legislation. 


1  The  following  table  shows  the  amount  of  compensation  which  would  be 
received  under  the  several  state  compensation  laws  as  of  January  1,  1919,  in 
case  of  death  or  of  loss  of  major  hand  at  the  wrist  sustained  by  a  married  man, 
thirty-five  years  of  age,  receiving  $15  a  week,  and  having  a  dependent  wife, 
thirty  years  of  age,  and  three  normal  dependent  children,  three,  six,  and  nine 
years  of  age.  It  has  been  assumed  that  the  loss  of  the  hand  results  in  a  total 
disability  of  fifteen  weeks  and  a  subsequent  partial  disability  of  50  per  cent 
of  life. 

COMPENSATION    PAYABLE    UNDER    STATE    LAWS    FOR    DEATH    AND 
FOR    LOSS    OF    HAND 


Compensation  payable 
under  state  laws  for 

State 

Compensation  payable 
under  state  laws  for 

Death 

Loss  of  hand 

Death        j   Loss  of  hand 

Arizona 

California  .... 

Connecticut .  . 

$4,800.00 

3,000.00 

2,340.00 
2,347.50 
2,440.00 
2,125.00 
2,908.00 
3,400.00 
3,135.00 
2,350.00 
2  350.00 
2,340.00 
3,341.25 
2,575.00 

2,250.00 

3,202.50 

4,000.00 

2,250.00 
2,575.00 
3.075.00 
3.000.00 

$2,040.00 

(        112.00 

I    '4.000.00 

2,232.75 

7S0.00 

1,170.00 

1,185.00 

1,830.00 

1,237.50 

1,599.00 

1,237.50 

1,125.00 

1,125.00 

1,402.50 

1,237.50 

(       937.50 

(   1 1,593.75 

1,125.00 

\       635.71 

1    '3,135.71 

1,125.00 

1,350.00 

1,125.00 

1,500.00 

New  Hampshire 

New  Jersey. .  .  . 
New  Mexico.  .  . 

Ohio 

$11,230.22 

2,250.00 

2,350.00 
2,525.00 

11, 20.",.  2  2 
4,320  00 

$1,412.50 

(         97.50 

(  '1,173.75 

1,222.50 

825.00 

2,440.00 

1,640.00 

1,500.00 

Idaho 

Indiana 

Iowa 

Kansas 

Kentucky  .... 
Louisiana  .... 

Pennsylvania  .  . 
Porto  Rico .... 

Rhode  Island .  . 

South  Dakota. . 

Utah 

13,480.92 

2,575.00 

(2) 
2,250.00 

3,000.00 
3,240.00 
2,732.25 
i  ,s:>r,.oo 
2,350.00 

10,354.20 
9,15(i.7M 
3,23  i.00 
3,000.00 

12,486.84 

1,787.89 

1,312.50 

(3) 

\       472.50 

(  '1,012.50 

1,237.50 

1,350.00 

1,137.50 

Maine 

Maryland  .... 
Massachusetts 

Minnesota..  .  . 
Nebraska .... 

Vermont 

Washington. .  .  . 
West  Virginia  .  . 

United  States  .  . 

L, 162.50 

1,125.00 
L.385.00 

1,1)12.50 
2,340.00 

8,433.51 

1  Includes  compensation  for  partial  disability. 

2  Maximum  $3,000  to  $4,000,  graded  according  to  earning  capacity  of  employee  and 
number  of  dependents. 

3  Maximum  $2,500,  minimum  $1,300;   graded  in  proportion  to  rate  of  wages  earned  at 
time  of  injury. 

—  U.  S.  Bureau  of  Labor  Slaiislics  Monthly  Labor  Review,  Vol.  VIII,  No.  S. 

37 


91899 


vl 
ACCIDENT  AND  DISEASE 

Definitions  of  "Accident" 

The  popular  conception  of  an  "accident"  is  probably 
much  narrower  than  the  definition  which  that  term  now 
receives  in  the  construction  of  compensation  legislation. 
The  fact  is  that  the  original  conception  has  been  greatly 
modified  and  extended  by  the  adoption  of  broader  statu- 
te >rv  language  and  by  administrative  construction.  The 
English  compensation  act,  which  served  as  a  model  for 
much  of  American  legislation,  created  its  fundamental 
liability  by  the  phrase  "personal  injury  by  accident  arising 
out  of  and  in  the  course  of  employment."1  That  phrase 
is  identically  or  substantially  contained  in  the  acts  of 
Alaska,  Arizona,  Colorado,  Delaware,  Hawaii,  Idaho, 
Illinois,  Indiana,  Kansas,  Kentucky,  Louisiana,  Maine, 
Maryland,  Minnesota,  Missouri,  New  Mexico,  Nebraska, 
Nevada,  New  Hampshire,  New  Jersey,  New  York,  Okla- 
homa, Oregon,  Pennsylvania,  Porto  Rico,  Rhode  Island, 
South  Dakota,  Utah,  Tennessee,  Vermont,  Virginia,  and 
Wisconsin.  The  qualifying  phrase  "by  accident"  is 
omitted  in  the  remaining  acts. 

In  every  state  an  injury  to  be  compensable  must  happen 
in  the  course  of  the  employment  and  in  all  but  five  states, — 
North  Dakota,  Ohio,  Pennsylvania,  Texas,  and  Washing- 
ton,—it  must  arise  out  of  or  result  from  the  employment. 
Washington  and  Wyoming  omit  the  word  "accident",  the 
former  qualifying  the  term  "injury"  by  the  phrase  "re- 
sulting from  some  fortuitous  event  as  distinguished  from 
the  contraction  of  disease,"  the  latter  using  the  phrases 
"injuries  sustained  in  extra  hazardous  employment,"  "as 
a  result  of  their  employment,"  while  at  work  on  their 
employer's  premises  or  where  their  employer's  business 
requires  their  presence,  and  subjects  them  to  extra 
hazardous  duties  incident  to  the  business. 

Occupational  diseases  are  now  compensable  in  Cali- 
fornia, Connecticut,  Hawaii,  Massachusetts,  Wisconsin, 
and  for  civil  employees  of  the  United  States. 

>6Echv.  VII,  Cap.  58,  Sec.  1.     (1) 

38 


Effect  of  Modifications 
The  effect  of  these  verbal  modifications  of  the  parent 
act,  the  broad  construction  of  which  already  permitted  it 
to  cover  many  forms  of  infection  by  disease  and  even 
remote  effects  of  injury,  has  been  to  greatly  extend  the 
application  of  the  act  from  what  are  popularly  con- 
sidered "accidents"  to  many  forms  of  sickness  and  to 
liability  for  not  merely  the  torts,  but  the  crimes  of  fellow- 
employees  and  third  persons  beyond  the  control  or  reach 
of  the  employer. 

British  Definition  of  "Accident" 
The  term  "accident"  was  unsatisfactorily  defined  in 
the  first  English  compensation  act  of  1897,  in  the  opinion 
of  leading  commentators,  until  the  decision  by  the  House 
of  Lords  in  1903,  in  the  case  of  Fenton  v.  Thorley  &  Com- 
pany (1903,  A.C.  443).  In  that  case  Lord  MacNaghten 
said: 

"I  come  therefore  to  the  conclusion  that  the  expression 
'accident'  is  used  in  the  popular  and  ordinary  sense  of  the 
word  as  denoting  an  unlooked-for  mishap  or  an  untoward 
event  which  is  not  expected  or  designed." 

Separation  of  Accident  and  Disease  in  British  Acts 
In  a  further  decision  of  the  House  of  Lords  in  the  case  of 
Brinton's  Limited  v.  Turvey  (1905,  A.C.  230)  it  was  held 
that  an  infection  to  the  eye  of  a  workman  from  anthrax 
in  the  wool  handled  by  him  was  "personal  injury  by 
accident."  All  the  Law  Lords,  however,  took  occasion  to 
expressly  emphasize  their  view  that  the  decision  must  not 
be  regarded  "as  involving  the  doctrine  that  all  diseases 
caught  by  a  workman  in  the  course  of  his  employment  are 
to  be  regarded  as  accidents."  In  the  succeeding  English 
legislation  of  1908  compensation  was  allowed  for  occupa- 
tional disease,  which  was,  however,  made  the  subject  of  a 
separate  statute  in  which  twenty-four  diseases  were 
enumerated  and  defined,  others  being  added  thereto  by  an 
official  board  of  physicians  upon  the  approval  of  the 
Secretary  of  State. 

American  Variations  of  "Accident" 
In  enacting  the  identical  or  substantial  language  of  the 
English  statute,  some  states  follow  it  closely  as  in  Michi- 
gan, narrow  it  somewhat  as  in  Nebraska,  where  it  seems 
to  require  extraneous  physical  injury,1  or  in  New  York 
construe  it  even   more   liberally   through   the   Industrial 

1  Jokansen  v.  Union  Stock  Yards  Co.,  99  Neb.,  328. 

39 


Commission,  which  holds  it  to  be  a  compensable  acci- 
dent wlu-n  a  street  railway  process  server  dies  from 
gangrenous   diabetes    alleged    to   result    from    a    fellow- 

nger  treading  upon  his  toes  while  the  decedent  was 
returning  to  his  [Mace  o\  employment  on  a  street  railway 
carol  the  company  which  employed  him.1 

Proof  of  Accident 
The  occurrence  of  an  accident  is  generally  held  to  be  a 
mixed   question  ot   law  and   fact,2  but  its  meaning  when 
applied  to  ascertained  facts  is  a  question  of  law.3 

Extension  of  Coverage  by  Massachusetts 
The  courts  of  Massachusetts  point  out  very  clearly  the 
extensive  increase  of  liability  where  compensation  is 
awarded,  as  in  that  state,  for  "personal  injury"  as  dis- 
tinguished from  "personal  injury  by  accident."  "There 
are  no  conditions,"  says  the  Supreme  Court  of  Massa- 
chusetts, "which  warrant  a  judicial  interpretation  of  the 
phrase  'personal  injury'  in  the  act  as  meaning  the  same 
as  'personal  injury  by  accident'  or  as  excluding  from  the 
scope  of  'personal  injuries'  those  instances  where  a 
diseased  physical  condition  may  have  invited,  or  rendered, 
the  employee  unusually  susceptible  to  'personal  injury.'"4 
The  word  "injury"  in  the  Massachusetts  statute  will  in- 
clude whatever  lesion  or  change  in  any  part  of  the  human 
system  produces  harm  or  pain  or  a  lessened  faculty  of  the 
natural  use  of  any  bodily  activity  or  capacity.5 

Exclusion"  of  Disease  by  Ohio,  Michigan,  Connecti- 
cut, California,  and  Iowa 
Yet  the  Supreme  Courts  of  Ohio,6  Michigan,7  and  Con- 
necticuts  have  held  that  "personal  injury,"  "even  with- 
out the  qualifying  word  'accident,'"  excludes  occupational 
disease,  the  administrative  boards  of  California9  and  Iowa10 

1  Br<  'S  R.R.  Co.,  The  Bulletin,  X.  Y.  State  Industrial 

Com:  ' .  ..  6,  page  12. 

.  72. 
3/  \.  C.  443. 

4  In  re  Madden.  2 

1  In  re  Burns,  218  Mass.,  8.    In  re  Madden,  222  Mass.,  487. 
6  Industrial  Com.  v.  Brown,  92  Ohio  State,  309. 

'dam.  v.  .1,  me  White  Lead  y  Color  Works,  L82  Mich.,  157. 
'Mil  ire  Co.,  90  Conn.,  349. 

•1  Cal.  LA.  C  p.  11. 

"Opinion  Special  Counsel  to  Iowa  Industrial  Com.  (1915),  page  26. 

40 


reaching  the  same  conclusion  with  respect  to  the  same 
language. 

The  Massachusetts  Supreme  Court  holds  to  the  con- 
trary, including  lead  poisoning  as  personal  injury,1  and  the 
Wisconsin  Court  holds  typhoid  fever  contracted  from 
drinking  water  supplied  by  the  employer  to  be  a  "personal 
injury,"2  but  the  Supreme  Court  of  Minnesota  took  the 
opposite  view  from  that  adopted  by  the  Wisconsin  courts 
in  a  case  involving  typhoid  fever  infection.3 

California,  by  an  amendment  in  1918,  definitely  included 
occupational  diseases  within  the  scope  of  the  compensa- 
tion law. 

It  appears  to  be  generally  accepted  that  injuries  are  to 
be  compensated  irrespective  of  pre-existing  tendencies  or 
the  subnormal  condition  of  the  injured  workman,4  pro- 
vided that  the  immediate  injury,  whether  accelerating  or 
exaggerating  the  pre-existing  condition,  proximately 
arises  from  the  employment.5  In  other  words,  the  cases 
show  that  the  courts  are  coming  to  make  a  definite  dis- 
tinction between  industrial  diseases  and  disease  resulting 
from  accident. 

1  Johnson  v.  London  Guarantee  &  Accident  Co.  Ltd.,  217  Mass.,  388. 

2  Bennen  v.  New  Dells  Lumber  Co.  (Wis.),  154  N.  W.,  640. 

3  State  ex  rel  Faribault  Woolen  Mills  Co.  v.  District  Court  of  Rice  County, 
164  N.  W.,  810. 

4  Mazzarisi  v.  Ward,  156  N.  Y.  Supp.,  964. 
Schmidt  v.  0.  K.  Baking  Co.,  1  Conn.  Comp.,  683. 
Forrest  v.  Roper  Furniture  Co.,  187  111.  App.,  504. 
In  re  Madden,  222  Mass.,  487. 

Voorhees  v.  Smith  Schoonmaker  Co.,  86  N.  J.  Law,  500. 
Hills  v.  Oval  Wood  Dish  Co.  (Mich.  Comp.  Cases,  1916,  p.  11). 
Gurney  v.  Los  Angeles  Soap  Co.,  1  Cal.  I.  A.  C.  Dec,  163. 
Fundamental  expressions  of  these  principles  are  found  in  Hughes  v.  Clover, 
Clayton  Co.,  25  T.  L.  R.,  760  (1909),  the  Law  Lords  holding 

"that  an  accident  arises  out  of  the  employment  when  the  required 
exertion  producing  the  accident  is  too  great  for  the  man  undertaking  the 
work,  whatever  the  degree  of  exertion  or  the  condition  of  health." 

The  Massachusetts  Supreme  Court  construing  the  State  Act  repre- 
sents the  advanced  application  of  the  English  ruling: 

"There  is  nothing  said  in  the  Act  about  the  protection  being  con- 
fined to  the  healthy  employee.  The  previous  condition  of  health  is  of 
no  consequence  in  determining  the  amount  of  relief  to  be  afforded.  It 
is  the  injury  arising  out  of  the  employment  and  not  of  disease  for  which 
compensation  is  to  be  made.  Yet  it  is  the  hazard  of  the  employment 
acting  upon  the  particular  employee  in  his  condition  of  health  and  not 
what  the  hazard  would  be  if  acting  upon  a  healthy  employee  or  upon 
the  average  employee." 

(In  re  Madden,  222  Mass.  Feb.,  1916.) 
6  Kill  v.  Industrial  Commission  (Wis.),  152  N.  W.,  148. 
Masich  v.  TV.  W.  R.R.  Co.,  2  Cal.  I.  A.  C.  Dec,  545. 
Flotat  v.  Union  Hardware  Co.,  1  Conn.  Comp.  Dec,  5. 
Ruth  v.  Wither spoon-Englar  Co.  (Kan.),  157  Pac,  403. 

41 


Causes  oi    ^.cciden  r 

It  is  cot  necessary  that  the  injury  should  arise  From  an 
extraneous  cause.1  It  may  be  caused  by  nervous  shock 
without  external  physical  cl  It  may  result  from 

the  wilful  or  even  criminal  act  of  another,  as  where  a 
watchman  is  wounded  while  defending  his  employer's 
property,"  i  >r  a  Foreman  is  assaulted  because  of  the  adminis- 
tration of  a  reprimand  for  doing  work  improperly,'1  or  a 
mill  superintendent  murdered  by  an  ejected  person.5 

Further  Broadening  of  the  Liability  of  the  British 

Act 

The  restrictions  diminished  by  the  elimination  of  the 
word  "accident"  from  the  definition  of  liability  are  yet 
further  lessened  by  striking  out  the  phrase  "out  of"  and 
permitting  liability  to  remain  merely  for  injuries  received 
"in  the  course  of  employment."  "Many  accidents  occur 
in  the  course  of,  but  not  out  of,  the  employment;  but  I 
am  unable  to  think  of  any  that  could  arise  out  of  and  not 
also  in  the  course  of  the  employment."  These  words  by 
Justice  Farwell6  express  the  effect  of  the  elimination  of 
"out  of"  in  many  state  acts,  for  it  is  obvious  that  an 
injury  may  be  received  in  the  course  of  employment 
while  the  cause  is  unrelated  to  such  employment. 

Elimination  of  "Out  of" 

The  phrase  "out  of"  has  been  generally  held  to  fix  the 
cause  or  source  of  the  accident  or  injury,  while  the  term 
"in  the  course  of"  defined  the  time,  place,  and  circum- 
stance of  its  occurrence.  Numerous  decisions  of  the 
courts  respecting  statutes  carrying  this  conjunctive  phrase 
emphasize  the  fact  that  mere  injury  while  performing  a 
duty  of  service  gives  no  claim  for  compensation  unless  an 
essential  relation  is  established  between  the  employment 
and  the  injury.  This  requirement,  of  course,  fails  when  it 
is  merely  necessary  to  show  that  the  injury  arises  during 

1  McMurray  v.  Little,  etc.,  3  N.  Y.  St.  Dept.  Rep.,  395. 

2  Reich  v.  City  of  Imperial,  1  Cal.  I.  A.  C.  Dec,  337. 

For  an  opposite  view  see  Visser  v.  Mich.  Cabinet  Co.,  Opinions  Mich. 
Industrial  Board,  Bulletin  3,  page  24. 

3  Hume  v.  Knickerbocker  Portland  Cement  Co.,  153  N.  Y.  Supp.,  1151. 

4  In  re  Reilhel  (Mass.),  109  N.  E.,  951. 

s  In  re  Employers'  Liability  Ins.  Corp.,  215  Mass.,  497. 

Hartnett  v.  Steen,  216  N.  Y.,  101. 
8  Leach  v.  Oakley,  Street  V  Co.,  1911,  4  B.  W.  C.  C,  98. 

42 


"the  course  "of  the  employment.  It  may  thus  be  caused 
through  the  violence  of  a  fellow-workman  or  a  stranger,1 
but  not  by  "horseplay."2  The  Ohio  Industrial  Commis- 
sion awarded  compensation  to  the  dependents  of  a 
stenographer  who  was  feloniously  shot  and  killed  by  a 
jealous  fellow-employee  while  taking  dictation  from  her 
employer.3 

Special  Liability  Suggested  by  Connecticut  Com- 
mission 
"Injuries  during  the  course  of  employment"  are  be- 
ginning to  include,  and  have  already  by  precedent  in- 
cluded, forms  of  infection  or  contagion  which  are  incidental 
rather  than  inherent  in  employment.  This  tendency, 
necessarily  reflected  in  an  increasing  severity  of  physical 
examination  in  the  jurisdictions  in  which  it  is  most 
evident,  doubtless  inspired  the  suggestion  of  the  Con- 
necticut Commission  in  1915,  that  persons  suffering  from 
inherent  physical  defects,  making  them  a  peculiar  hazard, 
shall  be  permitted  to  make  special  stipulations  with  regard 
to  compensation,  subject  to  the  approval  of  the  Commis- 
sion, as  a  practical  means  of  preventing  their  exclusion 
rom  employment. 

Proximate  Causes  of  Injury 
In  substantially  all  state  jurisdictions  the  burden  of 
proof  rests  on  the  claimant  to  show  that  the  accident  or 
injury  recited  is  the  proximate  cause  of  the  alleged  dis- 
ability or  death,  but  "proximate  cause  under  the  law  of 
negligence  always  has  to  be  traced  back  to  the  conduct 
of  responsible  human  agencies;  under  the  compensation 
act  the  words  'proximate  cause  by  accident'  in  terms 
relate  to  a  physical  fact  only,  namely,  an  accident.  Hence 
if  the  injury  or  death  can  be  traced  to  physical  cause  not 
too  remote  in  time  or  place  to  the  accident,  then  such 
injury  or  death  was  proximately  caused  by  the  accident, 
irrespective  of  any  element  of  reasonable  anticipation. 
The  term  'proximate'  was,  no  doubt,  used  to  exclude 
physical  causes  so  remote  in  time  and  place,  or  both,  as  to 
make  them  of  doubtful  value  in  tracing  the  relation 
between  cause  and  effect." 

1  Slertz  v.  Industrial  Insurance  Comtn.  (Wash.),  158  Pac,  216. 

Slate  v.  District  Court  of  Koochiching  County  (Minn.),  158  N.  W.,  713. 

2  Hulley  v.  Moosbrugger,  88  N.  J.  Law,  16. 

Pierce  v.  Boyer-Van  Kuran  Lumber  \$  Coal  Co.,  99  Neb.,  32. 

3  Anna  Schwenlein,  claimant.     Bulletin  Industrial  Commission  of  Ohio,  Vol. 
1,  No.  7,  page  136. 

43 


Pre-existing  Disi  \si    or  Injury 

The  view  of  the  Wisconsin  Supreme  Court1  seems  an 
excellent  statement  of  the  substantia]  principle.  It 
applies  equally  to  all  forms  of  disease  of  physical  conse- 
quence where  there  is  a  causal  connection  between  them 
and  the  injury.  Inasmuch  as  the  employer  is  said  to  take 
workmen  as  he  finds  them,  he  becomes  responsible  for 
disabilities  which  are  the  direct  result  of  an  injury  or 
accident  aggravating  a  previous  physical  condition.  Thus 
compensation  is  allowed  for  death  caused  through  an 
infected  heel  blister  poisoning  the  blood  stream  and 
causing  Bright's  disease,2  or  death  from  pneumonia  where 
the  power  of  resistance  has  been  reduced  by  an  occupa- 
tional strain,3  or  death  following  an  inflammation  of  a 
pre-existing  cancer  due  to  an  accidental  blow,4  or  where  a 
weak  heart  is  impaired  by  the  muscular  exertion  of  the 
work.5  Where  the  causal  connection  is  complete  the 
principle  applies,  although  merely  accelerating  pre- 
existing disease,  or  where  the  injury  ultimates  in  insanity 
or  suicide.  If,  however,  a  second  independent  cause  inter- 
venes at  any  point  the  causal  chain  is,  of  course,  broken 
and  the  liability  ceases.  The  question  is  always  one  of 
fact. 

Aggravation  of  Injury 

The  aggravation  of  the  injury  or  disability  by  the  con- 
duct of  the  workman  carelessly,  negligently,  or  unreason- 
ably preventing  cure  or  making  the  condition  worse  is 
ground  for  stopping  compensation.6  The  too  early  use 
of  a  broken  limb,  resulting  in  a  second  injury  to  it,  will  not 
permit  a  second  compensation.7  A  second  disability  pro- 
duced by  awkwardness  or  clumsiness  as  a  natural  result  of 
the  first  is,  however,  further  compensable.8  The  pro- 
longation of  working  incapacity  due  to  the  use  of  intoxi- 

1  City  of  Milwaukee  v.  Industrial  Comm.,  160  Wis.,  238. 

2  U'headon  v.  Red  River  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec,  640. 

3  Merritt  v.  Travellers'  Ins.  Co.,  2  Mass.  Workmen's  Com.  Cases,  635. 
*  Rose  v.  City  of  Los  Angeles,  2  Cal.  I.  A.  C.  Dec,  574. 

s  In  re  Madden,  222  Mass.,  487. 

8  Larke  v.  John  Hancock  Life  Ins.  Co.,  90  Conn.,  303. 

Reck  v.  San  Francisco-Oakland  Terminal  Ry.,  1  Cal.  I.  A.  C.  Dec,  462. 

Chiesa  v.  United  States  Crushed  Stone  Co.,  Bulletin  1  (111.),  page  82. 

Tuioomey  v.  Royal  Indemnity  Co.,  2  Mass.  Workmen's  Compensation  Cases, 
540. 

7  Woodruff  v.  Peterson,  1  Cal.  I.  A.  C.  Dec,  516. 

8  Block  v.  Mutual  Biscuit  Co.,  2  Cal.  I.  A.  C.  Dec,  274. 

44 


eating  liquors  is  not  compensable.1  The  Supreme  Courts 
of  Wisconsin  and  Washington2  have  held  the  employer 
liable  for  death  or  disability  resulting  from  the  professional 
incompetence  of  the  physician  supplied  by  him.  Death 
resulting  from  an  operation  necessitated  by  the  original 
injury  is  compensable.3 

Refusal  of  Medical  Instruction  or  Recommendation 

As  a  rule,  prolonged  disability  due  to  disobedience  of 
the  physician's  instruction  is  not  compensable.4  The 
question  of  whether  or  not  a  workman  is  unreasonable  in 
refusing  to  submit  to  an  operation  advised  by  a  physician 
to  cure  disability  or  save  life  must  rest  upon  the  circum- 
stances of  the  case.5  Thus  it  has  been  held  by  a  high  Eng- 
lish authority  that  it  is  not  unreasonable  to  refuse  to  sub- 
mit to  an  operation  involving  risk  of  life.6  On  the  other 
hand,  it  has  been  held  unreasonable  to  refuse  to  submit  to 
a  minor  operation  to  restore  the  use  of  a  finger  or  a  hand 
in  a  skilled  trade.7 

Hernia 

Hernia  is  a  special  subject  of  decision  and  administra- 
tive rule.  As  a  result  of  many  difficult  claims  and  con- 
siderable fraud  the  authoritative  rule  seems  to  be  that 
there  will  be  a  strong  presumption  against  a  hernia  directly 
arising  from  an  accidental  injury  which  will  not  be  over- 
come by  merely  showing  that  hernia  is  coincidental  with 
some  exceptional  exertion.8  Decisions  respecting  hernia 
are  by  no  means  harmonious.9    The  Oregon  Commission 

1  Reams  x.  New  London,  etc.,  1  Conn.  Comp.  Dec,  225. 

2  Ross  v.  Erickson  Construction  Co.,  89  Wash.,  634. 
Paulak  v.  Hayes,  162  Wis.,  503. 

In  same  connection,  see  modified  view  of  Minn.  Court,  Vita  v.  Dolan,  155 
N.  W.,  1077. 

3  Canturel  v.  Travellers'1  Ins.  Co.,  2  Mass.  Workmen's  Compensation  Cases,  246. 

4  Weaver  v.  Eyster  £s?  Sone,  1  Cal.  I.  A.  C.  Dec,  563. 

5  Jendrus  v.  Detroit  Steel  Products  Co.,  178  Mich.,  265. 
Lesh  v.  Illinois  Steel  Co.  (Wis.),  157  N.  W.,  539. 

6  Tutton  v.  Owners  of  S.S.  "Majestic,"  2  Butterworth's  Compensation  Cases, 
346  C.  A.  (1910). 

7  Slater  v.  New  Britain  Trap  Rock  Co.,  1  Conn.  Compensation  Decisions,  501. 

8  Jostv.  Gen.  Electric  Co.,  1  Cal.  I.  A.  C.  Dec,  527. 

Rozlowski  v.  Illinois  Steel  Co.  Rep.,  Wis.  Industrial  Commission,  1915,  page 
19. 

9  In  comparison  with  the  above,  see   Bell  v.  Hayes-Ionia   Co.  (Mich.),  158 
N.  W.,  179. 

Also  Poccardi  v.  Public  Service  Commission  (Minn.),  84  S.  E.,  242. 

45 


requires  hernia  claimants  to  piw  ide  affidavits  establishing 
the  non-existence  oi  hernia  before  the  accident.1  The 
Washington  Commission  requires  proof  that  hernia  is  of 
recent  origin,  is  accompanied  by  pain,  was  immediately 
preceded  by  an  accidental  strain  and  did  not  previously 
exist.  The  Nevada  Commission  has  likewise  adopted 
strict  definitive  rules. 

DlSFIGT  RI  MINT 

Injuries  causing  mutilation  or  disfigurement  accom- 
panied by  disability  to  pursue  the  previous  or  other  occu- 
pation have  received  considerable  legislative  and  judicial 
attention.  Eleven  states  have  made  statutory  provisions 
confined  as  a  rule,  however,  to  compensation  for  mutila- 
tion of  the  head  or  features.2  The  acts  of  Vermont, 
Kentucky,  and  Idaho  require  that  for  the  purpose  of  com- 
pensation mutilation  must  cause  lessened  capacity  to 
secure  employment.  The  Iowa  Commission  in  the 
absence  of  a  statutory  provision  held  it  would  allow  com- 
pensation only  if  it  could  be  shown  that  the  working 
capacity  was  affected.  The  New  York  courts  share  this 
view;  the  Industrial  Commission,  however,  exercises 
certain  discretionary  powers;3  the  Supreme  Court  of 
Illinois  modifies  it.1 

Occupational  Disease  as  an  Accident 

In  Great  Britain  certain  forms  of  occupational  disease 
resulting  from  infection,  like  anthrax,  were  held  to  be  a 
"personal  injury  by  accident."5  By  later  legislation  all 
occupational  disease  is  defined  in  a  separate  statute  to 
which  additions  are  made  by  order  of  the  Secretary  of 
State.6  In  our  own  legislation  there  is  now  a  marked 
tendency  to  require  separate  provision  for  such  disease  and 
to  deny  it  compensation  as  an  "accident."  The  Supreme 
Courts  of  Connecticut,7  Michigan,8  and  Ohio9  have  held 
their  respective  acts  do  not  include  occupational  disease, 

1  Oregon  Industrial  Accident  Board,  1st  Annual  Rept.,  page  18. 

2  Colo.,  111.,  Md.,  Mo.,  Ky.,  La.,  Nev.,  N.  Y.,  S.  Dak.,  Vt.,  Wis. 

3  Shinnick  v.  Clover  Farms  Co.,  154  N.  Y.  Supp.,  423. 
*  Waters  v.  Kroehler  Mfg.  Co.,  187  111.  App.,  548. 

5  Brinton's  Ltd.  v.  Turvey  (1905),  A.  C,  230. 

6  British  Workmen's  Compensation  Act,  1906,  Section  8,  Subsections  (2)  (6), 
and  Secretary  of  State's  orders  made  thereunder. 

7  Miller  v.  American  Steel  tf  Wire  Co.,  90  Conn.,  349. 

8  Adams  v.  Acme  White  Lead  13  Color  Works,  182  Mich.,  157. 
8  Industrial  Commission  v.  Brown,  92  Ohio  State,  309. 

46 


although  the  term  "injury"  and  not  "accident"  qualifies 
the  statute  of  each  of  these  states.  The  Supreme  Court 
of  Massachusetts,  on  the  contrary,  has  held  that  the  term 
"personal  injury"  includes  occupational  disease.1  The 
construction  and  practice  of  administrative  commissions 
indicates  an  increasing  tendency  to  allow  compensation 
for  many  forms  of  disease  contracted  during  employment 
without  requiring  a  clear  proximate  relation  thereto  to  be 
established.  The  courts,  however,  appear  to  be  drawing 
a  distinction  between  industrial  diseases  and  disease 
resulting  from  accident,  allowing  compensation  in  the 
latter  class  of  cases  and  denying  it  in  the  former  unless 
definitely  included  by  the  terms  of  the  statute. 


1  Johnson  v.  London  Guaranty  is  Accident  Co.  Ltd.,  217  Mass.,  3SS 

47 


VII 
"MISCONDUCT"   BY  EMPLOYER  AND  EMPLOYEE 

Various  Definitions  of  Misconduct 

The  one  generally  recognized  bar  to  recovery  of  com- 
pensation for  occupational  injury  is  "serious  and  wilful 
misconduct."  This  is  variously  defined  in  different  acts  or 
qualified  by  such  further  phrases  as  "self-inflicted  injury," 
wilful  intoxication,"  or  "the  violation  of  the  safety  rule 
made  for  the  employee's  protection."  The  major  phrase 
is  taken  from  the  English  act,  where  it  does  not  bar 
recovery  if  the  injury  received  results  in  "serious  and 
permanent  disability  or  death."1 

Misconduct  of  Employee  as  a  Defense 

It  is  an  affirmative  defense  which  the  employer  asserting 
must  establish.2  As  a  general  rule,  if  there  be  any  serious 
element  of  doubt  that  the  serious  and  wilful  misconduct  of 
the  employee  occasioned  his  injury,  compensation  will  be 
allowed.  Since  the  negligence  of  the  employee  is  in  itself 
no  obstacle  to  recovery  under  the  compensation  theory, 
the  phrase  "serious  and  wilful  misconduct"  means  much 
more  than  even  "gross  negligence."3 

Practical  Construction  of  Misconduct 

It  means  deliberate  performance  of  an  act  with  reckless 
disregard  of  the  consequences.4  The  word  "serious" 
applies  to  the  misconduct  of  the  employee  and  not  to 
the  consequence  of  his  injury. 

Intoxication  as  Misconduct 

Except  where  the  statute  specifically  provides,  intoxica- 
tion amounting  to  drunkenness  does  not  in  itself  con- 
stitute such  "wilful  misconduct"  as  will  bar  recovery,  and 

1  British  Workman's  Compensation  Act  (1906),  Sec.  1  (2),  paragraph  (c) . 

2  Ruprecht  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec,  864. 
Sirica  v.  Scovill  Mfg.  Co.,  1  Conn.  Compensation  Decisions,  171. 

3  In  re  Nickerson,  218  Mass.,  158. 
In  re  Burns,  218  Mass.,  8. 

Neradjic  v.  Northwestern  Iron  Co.,  154  Wis.,  97. 

4  Hofiemayer  v.  United  Film  Co.,  1  Cal.  I.  A.  C.  Dec,  620. 

48 


the  defendant  must  establish  the  existence  of  the  condi- 
tion by  affirmative  evidence.1  Distinction  is  made 
between  the  wilful  taking  of  liquor  and  its  effects,  which, 
it  is  considered,  may  be  aggravated  by  pre-existing 
abnormal  conditions  affecting  an  individual  in  a  manner 
not  intended  or  anticipated.2  Generally  speaking,  even 
where  drunkenness  is  shown,  the  defendant  must  make 
clear,  not  merely  that  the  applicant  was  intoxicated  at 
the  time  of  injury,  but  that  such  condition  was  either  the 
exclusive  or  the  strongly  contributing  cause  of  injury.3 

Violation  of  Safety  Rules  as  Misconduct 

The  disobedience  by  the  employee  of  a  reasonable  rule 
designed  and  qualified  to  secure  his  safety  becomes 
"serious  and  wilful  misconduct"  only  when  such  rule  has 
been  clearly  brought  to  the  attelntion  of  the  injured  em- 
ployee and  the  employer  has  not  tacitly  tolerated  its 
violation.4    The  disobedience  itself  must  be  wilful. 


Various  Statutory  Provisions 

Our  statutes  vary  widely  as  to  what  misconduct  shall 
bar  recovery  of  compensation.  Arizona,  Illinois,  Mon- 
tana, and  Utah  do  not  penalize  even  the  gross  fault  of  the 
employee.  The  great  majority  of  the  states,  however,  bar 
recovery  for  any  injury  either  "wilfully"  or  "intention- 
ally" inflicted.  In  twenty-nine  states  recovery  is  barred 
if  the  injury  is  due  to  intoxication.  In  New  Hampshire, 
Louisiana,  Oklahoma,  Kansas,  Indiana,  Tennessee,  Ver- 
mont, and  West  Virginia  the  removal  of  safety  appliances 
or  the  violation  of  a  safety  regulation  may  bar  recovery. 
In  about  a  dozen  states  "wilful  misconduct"  bars  recovery. 

This  lack  of  a  uniform  standard  or  definition  for  penal 
misconduct  is  reflected  in  the  decisions  of  both  courts  and 
industrial  commissions,  which  exhibit  reluctance  to  restrict 
relief,  especially  to  dependents.  But  it  is  highly  essential 
that  in  the  interest  of  the  worker  as  well  as  in  justice  to  the 
employer  a  strong  effort  should  be  made  to  maintain  an 
intimate  relation  between  prevention  and  relief. 

1  Hewitt  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec,  286. 
Ruprecht  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec,  864. 

2  Summerville  v.  De  Bella  y  Co.,  2  Cal.  I.  A.  C.  Dec,  122. 

3  American  Ice  Co.  v.  Fitzhugh  (Md.),  97  Atlantic,  999. 
*  Cleveland  v.  Hastings,  2  Cal.  I.  A.  C.  Dec,  15. 

Reimers  v.  Proctor  Pub.  Co.  (N.  J.),  89  Atlantic,  931. 

49 


MlSCOMHCT    OF     K.MPl.OYKR 

In  nine  states  the  employer  may  be  sued  if  the  injury  of 
the  employee  is  due  to  gross  negligence  or  wilful  mis- 
conduct ft  the  employer.1  In  Ohio  and  Oregon  an  em- 
ployer may  be  heavily  penalized  through  an  action  brought 
by  the  employee  if  he  violates  safety  provisions,  in  Ken- 
tucky it  he  illegally  employs  minors.  In  Washington  and 
West  Virginia,  in  addition  to  his  compensation,  the  em- 
pli  >yee  may  sue  for  excess  damages  if  his  injury  is  due  to  his 
employer's  deliberate  intention.  It  would  therefore  seem 
that  the  employee's  misconduct  should  under  like  circum- 
stances be  more  clearly  defined  and  equally  penalized. 


1  Cal.,  Ky.,  Md.,  Ohio,  Ore.,  Tex.,  Utah,  Wash.,  W.  Va. 

50 


VIII 
THE  EXCLUSIVENESS  OF  COMPENSATION 

Compensation  as  Complete  Substitute  for 
Employer's  Liability 

Compensation  acts  are  now  generally  held  to  be  sub- 
stitutional for,  and  not  supplementary  to,  the  system  of 
employers'  liability.  It  therefore  follows  that  as  between 
employer  and  employee  who  have  accepted  this  mode  of 
regulating  their  relation  with  respect  to  provisions  for 
work  injuries,  the  remedy  provided  excludes  pursuit  of 
any  other.1 

Election  after  Injury  Law  of  New  Hampshire 
and  Arizona 

In  all  elective  states,  save  New  Hampshire  and  Arizona, 
the  employee  must  choose  between  compensation  and 
common-law  remedies  before  injury,  and  is  bound  in  any 
subsequent  action  by  this  choice.  The  right  of  the  em- 
ployee to  choose  his  remedy  after  the  injury  evidently 
does  not  induce  employers  to  accept  compensation 
readily,  for  in  New  Hampshire  but  comparatively  few  em- 
ployers have  so  elected. 

Effect  of  Election  by  Employer 

In  twenty-five  states  and  Porto  Rico  the  acceptance  of 
compensation  by  the  employer  compels  the  employee  who 
rejects  it  to  meet,  in  an  action  at  law,  all  the  common-law 
defenses.2  Except  for  the  states  enumerated,  suits  at  law 
may  be  brought  against  the  employer  only  under  circum- 
stances which  give  them  the  nature  of  penal  remedies  for 
gross  or  wilful  acts  of  negligence.3 

1  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.,  367. 
Smale  v.  Wrought  Washer  Mfg.  Co.,  160  Wis.,  331. 
King  v.  Viscoloid  Co.,  219  Mass.,  420. 
McRoberts  v.  National  Zinc  Co.,  93  Kan.,  364. 
State  v.  Mountain  Timber  Co.,  75  Wash.,  581. 

2  Colo.,  Conn.,  Del.,  111.,  Ind.,  Iowa,  Kan.,  Ky.,  La.,  Me.,  Mass.,  Mich.,  Minn., 
Mo.,  Mont.,  Neb.,  Nev.,  N.  H.,  N.  Dak.,  Ore.,  R.  I.,  Tenn.,  Vt.,  Va.,  Wis. 

3  Thus  an  employer  may  be  sued  if  there  has  been  a  violation  of  the  safety 
laws  in  Oregon  and  Ohio;  if  he  illegally  employs  minors  in  Kentucky,  and  in 
quite  a  number  if  his  insurance  is  defaulted  or  if  his  risk  is  not  covered,  as 
required. 

51 


Suits  against  Third  Parties.     Thi  Washington  Law 

Generally  speaking,  no  act  deprives  an  employee  of  the 
right  to  bring  an  action  at  law  against  third  parties  or 
strangers  causing  his  injury  while  at  work;  but,  by  a 
decision  ot  the  Supreme  Court  of  the  United  States  sus- 
taining a  decision  of  the  court  of  last  resort  of  Washington, 
a  brewer}'  employee,  injured  in  the  brewer}-  yard  through 
the  negligent  movement  of  its  cars  by  a  railroad  company, 
was  held  to  be  excluded  from  bringing  a  suit  against  the 
carrier.1 


1  Northern  Pacific  R.R.  Co.  v.  Meese,  36  Sup.  Ct.  Rep.  223. 

52 


IX 

THE  ADMINISTRATION  OF  COMPENSATION   ACTS 

Administration  by  Courts  or  Commissions 

Our  compensation  acts  are  administered  either  (1) 
through  permanent  boards  or  commissions,  with  an  ulti- 
mate right  of  appeal  to  the  courts  on  questions  of  law,  or 
(2)  through  inferior  state  or  county  courts  acting  as 
arbitrators.  This  plan  may  be  varied,  through  the 
appointment  by  the  court  or  by  the  parties  at  interest,  of 
individual  or  committee  arbitrators.  No  fewer  than 
twenty-nine  states,1  Hawaii,  and  Porto  Rico  administer 
their  acts  through  commissions.2 

Settlement  of  Claims  between  the  Parties 

In  twenty-seven  states  and  territories  employer  and 
employee  are  encouraged  to  settle  claims  between  them- 
selves, subject  to  the  approval  of  some  public  board  or 
officer.  All  the  available  evidence  indicates  that  this 
method,  more  than  any  other,  is  speeding  the  adjustment 
of  claims  and  lessening  the  expense  involved.  Where  state 
insurance  monopoly  exists  this  course  may  not  be  pursued, 
since  the  State  itself  is  interested  in  the  pecuniary  terms  of 
the  settlement. 

Commission  Administration 

Where  the  parties  are  unable  to  agree  between  them- 
selves, the  states  administering  through  commissions 
provide  for  hearings  by  single  commissioners,  referees,  or 
subordinate  committees,  with  the  right  of  appeal  to  the 
commission.  Connecticut  vests  control  in  five  commis- 
sioners, each  administering  the  act  within  his  own  district, 
which  is  identical  with  the  Congressional  subdivisions  of 
the  state.  States  unprovided  with  boards  or  commis- 
sions adjudicate  disputed  cases  through  the  inferior 
courts,  or  through  officers  authorized  to  adjust  them. 

1  Cal.,  Colo.,  Conn.,  Del.,  Idaho,  111.,  Ind.,  Iowa,  Ky.,  Me.,  Mel,  Mass.,  Mich., 
Mont.,  Ncv.,  N.  Y.,  N.  Dak.,  Ohio,  Okla.,  Ore.,  Pa.,  S.  Dak.,  lex.,  Utah, 
Va.,  Vt.,  Wash.,  W.  Va.,  Wis. 

2  A  single  commissioner  in  la.,  Neb.,  S.  Dak.,  Vt.,  and  W.  Va. 

53 


\  IRIOUS    Di  nrs   OF   Commissions 

the  various  administrative  bodies  are  likewise  com- 
mitted the  settlement  of  many  delicate  questions  in- 
volving adjustment  of  medical  and  hospital  Ices,  and  the 
determination  ol  the  adequacy  of  surgical,  medical,  and 
nursing  service.  To  this  end  they  often  need,  but  are  not 
always  provided  by  law  with,  medical  advisers. 

Instalment  Payments  and  Commutation 

\\  ith  the  exception  of  Wyoming,  every  state  requires 
compensation  payment  to  be  made  in  periodical  instal- 
ments. It  is  obvious,  however,  that  circumstances  may 
arise  which  make  it  desirable  that  lump  sum  payments  be 
permitted.  The  practise  ought  to  be  strictly  safeguarded, 
or  the  very  purpose  of  compensation  may  be  defeated. 
Most  of  the  states,  therefore,  permit  applications  for 
commutation  payments  to  be  made  on  the  motion  of 
either  party  or  at  the  suggestion  of  a  court  or  a  com- 
mission. In  Wisconsin,  Rhode  Island,  Maine,  Massa- 
chusetts, Michigan,  Colorado,  Illinois,  Kansas,  Virginia, 
Kentucky,  and  Missouri  lump  sum  payments  cannot  be 
made  until  six  months  after  compensation  is  awarded.  In 
Indiana  and  Massachusetts,  however,  it  may  be  granted 
at  any  time  on  behalf  of  minors. 

Revision  of  Awards 

The  various  administrative  bodies  are  likewise  author- 
ized to  revise  awards  in  cases  where  the  condition  of  dis- 
ability or  dependency  has  so  changed  as  to  necessitate 
re-examination  and  award  in  conformity  with  new  condi- 
tions. These  provisions  provide  protection  against  fraud 
and  secure  additional  aid  where  circumstances  warrant 
it. 

Validity  of  Commission  Administration 

These  various  administrative  functions  have  been 
examined  in  a  variety  of  proceedings  and  uniformly  sus- 
tained by  judicial  opinion  as  a  valid  exercise  of  the  legisla- 
tive police  power.1 

1  Cunningham  v.  A".  JV.  Improvement  Co.  (Mont.),  119  Pac,  554. 
Borgnis  v.  Falk,  147  Wis.,  327. 
State  v.  Creamer,  85  0.  St.,  349. 
Mackin  v.  Detroit-Timken  Axle  Co.,  153  N.  W.,  49. 
Pigeon  v.  Employers'  Liability  Assurance  Corp.  (Mass.),  102  N.  E.,  932. 
Western  Metal  Supply  Co.  v.  Pillsbury  (Cal),  156  Pac.  491. 
Hunter  v.  Colfax  Con.  Coal  Co.  (Iowa),  154  N.  W.,  1037. 
Ua-xkins  v.  Bleakly,  220  Fed.,  378.    Affirmed,  37  Sup.  Ct.  Rep.,  256. 

54 


Right  of  Appeal 

While  all  acts  provide  opportunity  of  appeal  for  both 
employer  and  employee  respecting  questions  of  law  and 
constitutional  right,  the  findings  of  administrative  com- 
missions are  usually  conclusive  when  supported  by  evi- 
dence, although  that  evidence  be  not  wholly  satisfactory.1 
But  where  the  ultimate  findings  of  fact  by  an  administra- 
tive body  are  based  upon  conclusions  of  law,  they  are  sub- 
ject to  court  review,  in  so  far  as  they  involve  the  deter- 
mination of  such  questions  of  law.2 

An  exceedingly  important  application  of  the  com- 
pensation principle  is  found  in  the  act  of  Congress  of 
October  6,  1917,  which  provides  compensation  for  death 
or  disability  resulting  from  personal  injury  suffered  or 
disease  contracted  in  the  line  of  duty  by  any  commis- 
sioned officer  or  enlisted  man,  or  by  any  member  of  the 
army  or  navy  nurse  corps  (female)  of  the  United  States, 
when  employed  in  active  military  service. 


1  Blanding  v.  Sayles,  21  R.  I.,  211. 
In  re  Septimo,  219  Mass.,  430. 

Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.,  686. 
Bruce  v.  Taylor  (Mich.),  158  N.  W.,  153. 
Rhyner  v.  Hueber  Bldg.  Co.,  156  N.  Y.  Supp.,  903. 
City  of  Milwaukee  v.  Industrial  Comm.,  160  Wis.,  238. 
State  v.  District  Court  (Minn.),  156  N.  W.,  120. 
Armour  fc?  Co.  v.  Industrial  Board,  273  111.,  590. 

2  In  re  Rheinwald,  153  N.  Y.  Supp.,  598. 
Appeal  of  Hotel  Bond  Co.,  89  Conn.,  143. 
People  v.  McCue,  150  Cal.,  L95. 

Hulley  v.  Moosbrugger,  88  N.  J.  Law,  161. 

55 


X 

CONCLUSIONS  AND  SUGGESTIONS 

\  sympathetic  examination  of  the  legal  structure  and 

administration  of  compensation  acts  in  the  United 
States  suggests  certain  definite  conclusions.  There  can 
be  little  argument  over  the  fundamental  principle  of 
compensation,  namely:  The  substitution  of  a  definite 
and  certain  measure  of  relief  for  the  former  uncertainties 
<A  redress  through  litigation.  The  compensation  principle 
is  in  line  with  the  best  conceptions  of  equitable  industrial 
relationships.  However,  in  its  practical  application  by  a 
large  number  of  independent  jurisdictions  and  in  its 
interpretation  by  various  boards  and  courts,  there  has 
been,  as  this  report  clearly  shows,  a  vast  amount  of 
conflict.  Sudden  subversion  of  long  established  theories 
of  liability,  the  rapid  extension  of  novel  principles  of 
obligation  and  procedure,  the  inevitable  confusion  of 
differing  legislative  policies  dealing  with  a  new  and  un- 
familiar subject  amid  the  play  of  many  political  forces 
and  the  lack  of  domestic  experience,  naturally  express 
themselves  in  contradictory  thought  and  action.  Unco- 
ordinated and  extensive  amendment  of  the  various  acts 
has  not  bettered  this  condition.  Considering  the  wide- 
spread revolution  in  the  thought  and  tradition  of  Bench 
and  Bar,  and  the  hitherto  slowly  changing  legal  relations 
of  employer  and  employee,  there  is  little  occasion  for 
surprise  at  this  inharmony  of  enactment  and  interpreta- 
tion. But  this  conflict  of  theory  and  action  ought  steadily 
to  diminish.  To  accomplish  this,  it  is  obvious  that  at 
least  an  organized  effort  must  be  established  toward  a 
concert  of  thought  and  action  by  the  state  commissions. 

Common  information  is  the  seed  of  common  opinion. 
It  is  therefore  suggested: 

First:  The  states,  through  appropriate  representatives, 
should  undertake,  under  expert  guidance,  the  immediate 
establishment  of  a  permanent,  scientific,  uniform  system 
of  compensation  statistics  that  all  may  know  and  apply 
the  progressive  experience  of  each.  This  would  properly 
include    provision    for    separate    publication    of    judicial 

56 


decisions  relating  to  the  compensation  principle,  together 
with  substantial  memoranda  of  all  contested  cases  de- 
termined by  administrative  bodies.  Thus  there  would  be 
assured  a  set  of  controlling  facts  which,  in  association  with 
collated  judicial  opinions,  would  secure  an  accurate  and 
convenient  legal  record  of  the  operation  of  each  act.1 

Second :  Availability  of  such  data  would  be  a  great  step 
toward  the  establishment  of  definite  insurable  standards 
of  liability.  The  interests  of  neither  employer  nor  em- 
ployee are  served  by  ambiguous  expressions  of  legal 
obligation  which  necessarily  make  for  precautionary 
premium  rates  to  safeguard  against  contingencies  of 
judicial  interpretation. 

Third :  Compilation  of  systematic  and  uniform  accident 
data  would  exercise  a  powerful  influence  on  conventional 
legislative  notions  of  the  relative  hazard  of  occupations, 
and  permit  the  just  extension  of  the  compensation 
principle  to  many  workers  now  arbitrarily  excluded  from 
its  terms. 

Fourth:  Clear  discrimination,  in  legal  definition, 
between  "occupational  disease,"  "accident,"  and  "in- 
jury" would  tend  to  clarify  liability,  harmonize  admin- 
istrative decisions,  and  minimize  contested  claims. 

Fifth:  Experience  justifies  the  further  simplification 
of  administrative  procedure  by  uniformly  encouraging 
direct  settlement  between  employer  and  employee  of  all 
claims,  this  practice  to  be  conditioned  by  adequate  safe- 
guards for  the  protection  of  the  employee. 

Sixth:  In  view  of  the  general  conclusion  of  state  courts 
and  the  Supreme  Court  of  the  United  States  that  the 
compensation  system  is  intended  to  be  and  should  be 
substitutional  for  and  not  supplemental  to  employer's 
liability,  it  is  suggested,  as  a  great  step  toward  uniformity 
in  substance  and  procedure,  that  a  fixed  tendency  be 
established  toward  an  exclusively  compulsory  compensa- 
tion system,  thus  eliminating  many  technical  questions 
relating  to  whether  or  not  employer  or  employee  had 
made  an  election.  The  elective  system  in  all  its  legal 
forms  is  intended  to  compel,  under  the  penalty  of  abro- 
gated defenses,  an  adoption  of  compensation,  and  leaves 

1  The  State  of  New  York  has  just  published  the  compensation  decisions  of  its 
courts  from  1914  to  1916.  Department  of  Labor,  New  York  State  Special 
Bulletin  No.  81,  March,  1917.  Court  Decisions  on  Workmen's  Compensation 
Law.  Decisions  have  also  been  published  by  several  other  states;  for  example, 
Massachusetts,  Maine,  Maryland,  Michigan,  Minnesota,  and  West  Virginia. 

57 


to  employer  and  employee  in  the  vast  majority  of  cases 
an  option  without  a  choice. 

The  present  state  oi  the  subject  and  the  great  number 
oi    independent    agencies    in    operation,    influenced    by 

differing  local  conditions,  make  it  difficult  to  mine  than 
st  the  establishment  of  tendencies  which,  once 
set  in  motion,  undoubtedly  would  stimulate  common 
action,  as  accurate  and  systematized  information  reacted 
upon  popular  and  legislative  opinion. 


53 


APPENDIX— Table  A 

DATES  WHEN  WORKMEN'S  COMPENSATION    LAWS  WERE  ENACTED 
AND  BECAME  EFFECTIVE  IN 

'  UNITED  STATES  AND  TERRITORIES 

(Note  —  Most  workmen's  compensation  laws  have  been  amended  or  superseded  since  first  enacted.) 


Alabama    .... 

Alaska   

Arizona  .... 
California  .  .  . 
Colorado  .... 
Connecticut  .  . 
Delaware  .... 

Hawaii 

Idaho     

Illinois 

Indiana      .... 

Iowa 

Kansas 

Kentucky  (a)  .  . 
Louisiana      .    .    . 

Maine 

Maryland  .  .  . 
Massachusetts 
Michigan  .... 
Minnesota  .  .  . 
Missouri  .... 
Montana  (b)  .  . 
Nebraska  .... 
Nevada  .... 
New  Hampshire  . 
New  Jersey  .  .  . 
New  Mexico  .  . 
New  York  (c)  .  . 
North  Dakota  .    . 

Ohio 

Oklahoma     .    .    . 

Oregon 

Pennsylvania  .  . 
Philippine  Islands 
Porto  Rico  .  .  . 
Rhode  Island  (d) 
South  Dakota  .  . 
Tennessee.   .   .   . 

Texas     

Utah      

Vermont  .... 
Virginia  (a)  .  .  . 
Washington  .  . 
West  Virginia  .  . 
Wisconsin  .  .  . 
Wyoming  .  .  . 
United  States  .    . 


Effective 


Approved 

Administrative 

Liability 

Provisions 

Provisions 

Aug.     23,  1919 

Dec. 

1,1919 

Jan. 

1,  1920 

April     29,  1915 

My 

28, 

1915 

Tuly 

28, 1915 

June       8, 1912 

Sept. 

1 

1912 

Sept. 

1,  1912 

April      8,  1911 

Sept. 

1 

1911 

Sept. 

1,  1911 

April     10,  1915 

April 

10 

1915 

Aug. 

1,  1915 

May     29,  1913 

Jan. 

1 

1914 

Jan. 

1,  1914 

April       2,  1917 

Jan. 

1 

1918 

Jan. 

1,  1918 

April    28,  1915 

July 

1 

1915 

luly 

1,  1915 

March  16,  1917 

Tulv 

1 

1917 

Jan. 

1,  1918 

June     10,  1911 

May 

1 

1912 

May 

1,  1912 

March    8,  1915 

Sept. 

1 

1915 

Sept. 

1,  1915 

April     18,  1913 

Tulv 

4 

1913 

luly 

1,  1914 

March  14,  1911 

Jan. 

1 

1912 

Jan. 

1,  1912 

March  21,  1914 

Jan. 

1 

1915 

Jan. 

1,  1915 

June     18, 1914 

Jan. 

1 

1915 

Jan. 

1,  1915 

April       1,  1915 

Oct. 

1 

1915 

Jan. 

1,  1916 

April     15,  1912 

April 

15 

1912 

April 

15,  1912 

July      28,  1911 

Tulv 

1 

1912 

luly 

1,  1912 

March  20,  1912 

Sept. 

1 

1912 

Sept. 

1,  1912 

April     24,  1913 

Oct. 

1 

1913 

Oct. 

1,  1913 

April     28,  1919 

Nov. 

1 

1919 

Nov. 

1,  1919 

March    4,  1909 

Oct. 

1 

1910 

Feb. 

1,  1911 

April    21,  1913 

Dec. 

1 

1914 

Dec. 

1,  1914 

March  24,  1911 

Tulv 

1 

1911 

luly 

1,  1911 

April     15,  1911 

Jan. 

1 

1912 

Jan. 

1,  1912 

April      4,  1911 

Tulv 

4 

1911 

July 

4,  1911 

March  13,  1917 

June 

8 

1917 

June 

8,  1917 

June     25,  1910 

Sept. 

1 

1910 

Sept. 

1,  1910 

March    5,1919 

April 

1 

1919 

luly 

1, 1919 

June     15, 1911 

Jan. 

1 

1912 

Jan. 

1,  1912 

March  22,  1915 

Tulv 

1 

1915 

Sept. 

1,  1915 

Feb.      25,  1913 

Nov. 

4 

1913 

June 

30,  1914 

June       2,  1915 

June 

2 

1915 

Jan. 

1,  1916 

Dec.        1,  1905 

Dec. 

1 

,1905 

Dec. 

1,  1905 

April     13,  1916 

Tulv 

1 

1916 

July 

1,  1916 

April     29,  1912 

Oct. 

1 

1912 

Oct. 

1.  1912 

March  10,  1917 

Tulv 

1 

1917 

June 

1,  1917 

April     15,  1919 

Tulv 

1 

1919 

July 

1,  1919 

April     16,  1913 

Sept. 

1 

1913 

Sept. 

1,  1913 

March  15,  1917 

March  15 

1917 

luly 

1,  1917 

April       1,  1915 

April 

1 

1915 

July 

1,  1915 

March  21,  1918 

Oct. 

1 

1918 

Jan. 

1,  1919 

March  14,  1911 

Oct. 

1 

1911 

Oct. 

1,  1911 

Feb.      22,  1913 

Oct. 

1 

1913 

Oct. 

1,  1913 

May       3,  1911 

May 

3 

1911 

May 

3,  1911 

Feb.      27.  1915 

April 

1 

1915 

April 

1,  1915 

Sept.      7,  1916 

Sept. 

7 

1916 

Sept. 

7,  1916 

(a)  Act  declared  unconstitutional;  substitute  act  now  in  force  approved  March  23,  1910;  adminis- 
trative provisions  effective  April  1,  1916;   liability  provisions  effective  August  1,  1910. 

(6)  Act  declared  unconstitutional;  substitute  act  now  in  force  approved  March  8,  1915;  adminis- 
trative provisions  effective  March  8,  1915;  liability  provisions  effective  July  1,  1915. 

(c)  Act  declared  unconstitutional;  substitute  act  now  in  force  approved  Dec.  10,  1913;  adminis- 
trative and  liability  provisions  effective  July  1,  1914. 

(d)  Passed  over  Governor's  veto. 

59 


APPENDIX     Table  B 


DATES  WHEN  WORKMEN'S  COMPENSATION   LAWS    WERE 

EN \CTED  IN 

FOREIGN  COUNTRIES  AND  PROVINCES 


Alberta      March    5 

Argentina      Sept.     27 

Australia Dec.      24 

Austria      Dec.      28 

Belgium Dec.      24 

Brazil Jan.       15 

British  Columbia     .    .  June     21 

Bulgaria March    7 

Cape  of  Good  Hope    .  June       6 

Chile June      19 

Colombia Nov.     15 

Cuba June      12 

Denmark Jan.        7 

Finland Dec.        5 

France April       9 

Germany July        6 

Great  Britain   ....  Aug.       6 

Greece March    6 

Hungary April      9 

Italy March  17 

Japan March  28 

Liechtenstein    ....  April     30 

Luxembourg     ....  April      5 

Manitoba      March  16 

Mexico  (Nuevo  Leon)  Nov.       9 

Montenegro      ....  March    3 

Netherlands      ....  Jan.         2 


190S 
1915 
1912 
L887 

1903 
1919 

1902 
1909 
1905 
1917 
1915 
1916 
1898 
1895 
1898 
1884 
1897 
1901 
1907 
1898 
1911 
1910 
1902 
1910 
1906 
1911 
1901 


New  Brunswick 
Newfoundland 
New  South  Wales 
New  Zealand 
Norway     .    . 
Nova  Scotia 
Ontario 
Peru  .    .    . 
Portugal    . 
Quebec  .    . 
Queensland 
Roumania 
Russia   .    . 
San  Salvador 
Saskatchewan 
Serbia    .    .    . 
South  Australia 
Spain     .    . 
Sweden 
Switzerland 
Tasmania 
Transvaal 
Union  of  South 
Venezuela 
Victoria     .    . 
West  Australia 


Afri 


May 
Feb. 

Nov. 
Oct. 
July 

April 
May 
Jan. 

July 


May  29 

Dec.  20 

Feb.  7 

June  15 

May  12 

March  23 

July  12 


Dec. 
Jan. 
July 
June 
Jan. 
Aug. 
July 
Feb. 
Feb. 
Feb. 


1903 
1908 
1900 
1900 
1894 
1910 
1914 
1911 
1913 
1909 
1905 
1912 
1903 
1911 
1911 
1910 
1900 
1900 
1901 
1911 
1911 
1907 
1914 
1906 
1914 
1902 


60 


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